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 theSingle Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 19 March 2013, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the coach Coach T, from country B as “Claimant” against the club Club A, from country Q 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 theSingle Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 19 March 2013, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the coach Coach T, from country B as “Claimant” against the club Club A, from country Q as “Respondent” regarding a contractual dispute between the parties. I. Facts of the Case 1. On 10 February 2009, Coach T, from country B (hereinafter: the Claimant) and Club A, from country Q (hereinafter: the Respondent) signed an employment contract (hereinafter: the 1st contract) valid for the 2009/2010 season, according to which the Claimant was hired as the coach of the “first team” of the Respondent and under the terms of which he was entitled to receive a monthly salary of USD 9,000, as well as a “furnished family accommodation or house allowance“ and a car. The annexe to the 1st contract further stipulated the following: “Air Ticket : will be provided for the trainer [i.e. the Claimant] and his wife, his children on the route of (country B/country Q/country B) as the rules effected by Olympic committee”. 2. Article VII of the 1st contract provided that “This contract begins on the date of the second party’s [i.e. the Claimant] work at the club [i.e. the Respondent]”. 3. Article VIII of the 1st contract stipulated that “the club [i.e. the Respondent] and the coach [i.e. the Claimant] shall be entitled to terminate this contract, before its expiring term, by fifteen (15) days’ notice in writing according with the FIFA Regulations governing this matter as well as the Law of the State of country Q”. 4. On 4 July 2009, the Claimant and the Respondent signed another employment contract (hereinafter: the 2nd contract), also valid for the 2009/2010 season and according to which the Claimant was engaged as a coach of the “Football team (Club R)”. 5. Article 6 of the 2nd contract stipulated that the “previous contract [i.e. the 1st contract] signed with us on 10/2/2009 is cancelled”. The other terms of the 2nd contract remained unchanged and reflected what had been agreed in the previous contract, including the flight tickets. 6. On 4 January 2010, the Claimant lodged a complaint with FIFA against the Respondent, claiming that the latter had failed to provide him with the relevant flight tickets for him and his family “in order to accomplish his contractual duties”. In this respect, the Claimant stated that he had written to the Respondent on 19 and 24 June 2009 to provide him “with the exact dates for his presentation” to the Respondent as well as had requested his flight tickets. 7. Consequently, and having apparently not received the requested flight tickets, the Claimant explained to have informed the Respondent on 14 December 2009 that he had decided to terminate their contractual relationship. In this respect, the Claimant provided FIFA with a letter sent to the Respondent which stated that “Coach T [i.e. the coach] herewith terminates any and all contractual relationship with Club A [i.e. the Respondent]”. 8. Therefore, the Claimant requested from the Respondent the “total amount of USD180,000 […] plus financial compensation for the breach of the agreement […] as well as establish disciplinary measure to be taken by deciding body against the country Q Club [i.e. the Respondent]”. 9. In its submission dated 28 October 2010, the Respondent rejected the complaint of the Claimant in its entirety and argued that the claim lodged by the Claimant was based on the content of the 1st contract and that it should therefore be rejected as the 2nd contract had cancelled the previous one. In this respect, the Respondent explained that the 2nd contract mentioned that the Claimant would coach the “Club R team” which was the “reserve team to the club’s first team”. 10. Moreover, the Respondent deemed that the Claimant “did not activate the Employment Contract [i.e. the 2nd contract]” since he had not appeared at the Respondent on 1 September 2009 as allegedly agreed and had “after 1 September 2009 never travelled to country Q in order to start his working obligations […] nor did he request the Respondent to provide him with flight tickets to arrive in the State of country Q”. 11. The Respondent further explained to have received a termination letter from the Claimant on 14 December 2009 without any previous warning. In this respect, the Respondent was of the opinion that the “fax-letters of 19 June 2009 as well as 24 June 2009, are of not any relevance in this context as the Employment contract cancelling the contract of 10 February 2009 was concluded only in the middle of July 2009, the non-providence of a flight ticket from a legal point of view does not state a major contractual violation which may lead to the existence of just cause”. 12. Alternatively, the Respondent argued that the “calculation of the compensational amount was wrong”. In this respect, the Respondent alleged that the Claimant was entitled to ten monthly salary of USD 9,000 for a total amount of USD 90,000. Moreover, the Respondent deemed that the Claimant had “apparently started to work since January 2010 for the Club I, from country B”. Therefore, the Respondent was of the opinion that the compensation would have to be mitigated. 13. On 20 May 2011, the Claimant provided addition comments and claimed that he had received an e-mail from the club on 28 May 2009 containing an unsigned “draft of a settlement agreement” by means of which the Respondent proposed an amicable termination of the contract. Consequently, the Claimant had sent two letters to the Respondent on 19 and 24 June 2009 reminding the latter of its obligations (cf. par. 6 above) and had received from the Respondent a letter also dated 24 June 2009 which mentioned that the sporting season in country Q would begin on 1 September 2009 and which stated that “We confirm that we will send the Head-Coach’s [i.e. the Claimant] ticket in order for him to assume his work duties in country Q with effect from 01 September 2009 and we will send him such ticket by 25 August 2009 at the latest”. 14. The Claimant further stated to have then received on 4 July 2009 from the Respondent “a new version of the employment contract [i.e. 2nd contract]”, which was slightly different than the previous contract as he was hired as the coach of the “Club R team”. In this respect, the Claimant explained to have asked the Respondent on 7 July 2009 about this change and to have been informed by the Respondent on 8 July 2009 that “Club R Football Company [i.e. the club] has two football teams, Club B and Club R, the latter is the reserve team, but both played Men’s first division”. The Respondent further stated that “we [i.e. the club] have committed to all financial obligations according to the contract signed with the coach [i.e. the Claimant], we have not changed in the contract whether the old or the new contract, but be updated and the names signatories of Club A company not Club, it is appropriate to the requirements of next season”. 15. The Claimant alleged to have accepted such contractual amendments and to have subsequently sent a letter to the Respondent on 26 August 2009 informing it that he had still not received any flight tickets and asked the Respondent to provide “its position regarding the present matter by return fax”. 16. Consequently, the Claimant was of the opinion that he had no other choice but to terminate his contractual relationship with the Respondent since the latter had “demonstrated its intention to terminate the contract” by sending a settlement agreement, then had decided to modify the terms of the 2nd contract and had, finally, never sent his flight tickets. 17. Finally, the Claimant reiterated that the Respondent had breached the contract and that it should be requested to pay him, as compensation for said breach, the total amount of USD 189,629, “plus the costs of accommodation in Doha for twelve months”, as follows: USD 108,000 ”as the remuneration due under the existing employment contract (loss of the value of services)”, USD 11,677 representing the costs “of a twelve-month compact car in Doha”, USD 15,952 corresponding to “the costs of three round trip flight tickets country B-country Q-country B for the coach and his family”, as well as a further amount of USD 54,000 “for sporting, image and moral damages calculated through the criteria of the specificity of sport”. Finally, the Claimant requested an interest of 5% per annum “over the total amount due as compensation […] from the date of the last notification addressed by the coach [i.e. the Claimant] to the club [i.e. the Respondent], i.e. 14 December 2009” as well as sporting sanctions for the unjustified breach of contract “during the protected period”. 18. On 10 October 2011, in its final position, the Respondent reiterated its previous arguments and added that there was no contractual relationship between the Respondent and the Claimant since the 2nd contract was concluded between the Claimant and “Club A Football Company which is an independent legal entity to Club A Sports Club”. Moreover, the Respondent deemed that the Claimant “must be considered to be in breach of the Employment Contract [i.e. 2nd contract] due to the fact that he has never complied with his obligations pursuant to the Employment Contract [i.e. 2nd contract] to travel to country Q in order to assume work”. 19. With regard to the possible sporting sanctions, the Respondent was of the opinion that “article 17 par. 4 cannot be applied in analogy for breaches concerning coaches”. 20. Therefore, the Respondent reiterated that the complaint should be rejected entirely and the Claimant should not receive any compensation whatsoever. 21. On 1 February 2013, the Claimant informed FIFA that he had not signed any employment contract with any club during the period from 4 July 2009 until 30 June 2010. II. Considerations of the Single Judge of the Players’ Status Committee 1. First of all, the Single Judge of the Players’ Status Committee (hereinafter also referred to as: the Single Judge) analysed which procedural rules are applicable to the matter at hand. In this respect, he first 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). Consequently, and since the present matter was submitted to FIFA on 4 January 2010, the Single Judge concluded that the edition 2008 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the case before him. 2. 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, on the one hand, to art. 26 par. 1 and 2 of the 2010 and 2009 versions 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 4 January 2010. In view of the foregoing, the Single Judge concluded that the 2009 edition of the FIFA Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the case at hand as to the substance. 3. In continuation and with regard to his competence, 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 2009 edition of the Regulations, he was competent to deal with the present matter since it concerned an employment-related dispute between a football coach of country B nationality and a football club from country Q. 4. His competence and the applicable regulations having been established, and entering into the substance of the present matter, the Single Judge started by acknowledging the facts of the case and the arguments of the parties as well as the documents contained in the file. 5. In this respect and first of all, the Single Judge underlined that on 10 February 2009 the Claimant and the Respondent had signed the 1st contract valid for the 2009/2010 season, according to which the Claimant was hired as the coach of the “first team” of the Respondent and under the terms of which he was entitled to receive a monthly salary of USD 9,000, as well as a “furnished family accommodation of house allowance” and a car. 6. The Single Judge took also note that the annexe to the 1st contract stipulated that the Claimant was entitled to flight tickets for him and his family on the route country B – country Q – country B. 7. Equally, the Single Judge of the Players’ Status Committee acknowledged that on 4 July 2009 the Claimant and the Respondent had concluded the 2nd contract, also valid for the 2009/2010 season, and according to which the Claimant was engaged as a coach of the “Football team Club R”. 8. In view of the above and although the terms of the 2nd contract remained practically unchanged, except for the fact that the Claimant would be in charge of the “Football team Club R”, and reflected what had been agreed in the 1st contract, including the term that the flight tickets would be “provided” to the Claimant, the Single Judge was eager to underlined that, based on the principle of novation, the 2nd contract had effectively replaced the 1st contract. 9. With these considerations in mind, the Single Judge went on to consider the arguments raised by the parties during the present proceedings. Starting with the allegation of the Claimant, the Single Judge acknowledged that the Claimant had decided to terminate the contractual relationship with the Respondent on 14 December 2009 since the latter had apparently failed to comply with its contractual obligations, i.e. the requested flight tickets which would have permitted the Claimant to start working for the Respondent had apparently not been dispatched to him. Consequently, the Claimant deemed that the Respondent should be requested to pay him a total amount of USD 189,629 as compensation, accommodation, flight tickets and “moral” damages. 10. As for the Respondent’s argumentation, the Single Judge firstly took note that it had deemed that there was no contractual relationship between the parties since the 2nd contract had been concluded between the Claimant and “Club A Football Company”, an alleged independent legal entity different from the Respondent. 11. In this regard, and while referring to art. 12 par. 3 of the Procedural Rules which stated that “any party claiming a right on the basis of an alleged fact shall carry the burden of proof”, the Single Judge pointed out that the Respondent had not provided any evidence which would have proved that “Club A Football Company” was an independent legal entity different from the Respondent. Therefore, the Single Judge confirmed that the 2nd contract was binding between the Claimant and the Respondent. 12. In continuation, the Single Judge drew his attention to the fact that the Respondent had argued that the contractual relationship was not “activated” by the Claimant since he never started working for the team. 13. In this respect, the Single Judge took note that the Claimant had sent two letters to the Respondent on 19 and 24 June 2009 requesting his flight tickets as well as further information as to when he should present himself to the Respondent. Furthermore, the Single Judge underlined that although the Respondent had informed the Claimant, by means of a letter dated 24 June 2009, that he would start working on 1 September 2009 and that his flight tickets would be sent to him “by 25 August 2009 at the latest”, it had subsequently never provided the Claimant with the relevant flight tickets. In addition, the Single Judge noted that the Claimant had informed the Respondent by letter 26 August 2009 that he was still waiting for his flight tickets but to have not received any answer from the Respondent to his letter. 14. Consequently, and taking into account that the Respondent had not complied with its obligations to provide the Claimant with said flight tickets, as stipulated under the terms of the 2nd contract, the Single Judge held that such failure on the part of the Respondent had prevented the Claimant from joining the Respondent on 1 September 2009 and comply with his side of the contract. In view of this, the Single Judge concluded that the Respondent had breached the 2nd contract without just cause and should therefore compensate the Claimant for this unjustified breach. 15. Having established the above-mentioned, the Single Judge of the Players’ Status Committee proceeded to the calculation of the compensation. In this respect, the Single Judge was keen to underline that the Claimant would have been entitled to a basic salary of USD 108,000, i.e. 12 monthly salaries of USD 9,000, for the entire duration of the contract. Furthermore, the Single Judge assessed if there were any mitigating factors that ought to be taken into account in the calculation of the final compensation for breach of contract to be paid by the Respondent to the Claimant. 16. In this regard, the Single Judge point out, in particular, that after sending his letter to the Respondent on 26 August 2009 requesting his flight tickets, the Claimant had apparently not contacted the Respondent until 14 December 2009, date on which he had informed the latter that he considered the contract to be terminated. In view of the long period of time that had elapsed between the aforementioned two correspondence (i.e. 26 August 2009 and 14 December 2009), the Single Judge concluded that the Claimant could have done more in order to make sure that the Respondent complied with its contractual obligations towards him. In the opinion of the Single Judge, the Claimant should have insisted, on or straight after the date on which he was supposed to start working for the Respondent, on the fact that the latter should comply with its obligations towards him. As a matter of fact, the Claimant had stopped communicating with the Respondent even before the contract was supposed to start, i.e. 1 September 2009. 17. Therefore and under the present circumstances, the Single Judge of the Players’ Status Committee deemed that an amount of USD 36,000, which represented one-third of the total value of the 2nd contract, represented a fair and reasonable amount to be paid by the Respondent to the Claimant as compensation for breach of contract. 18. With regard to the interest requested by the Claimant over the amount of compensation and in view of the jurisprudence of the Players’ Status Committee, the Single Judge held that an interest at a rate of 5% per year on the total amount of USD 36,000 should apply as from 19 March 2013, i.e. as from the date of the present decision. 19. Consequently, the Single Judge decided to partially accept the claim of the Claimant and held that the Respondent has to pay to the Claimant the total amount of USD 36,000, together with an interest of 5% on the said amount as from 19 March 2013. 20. 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. The relevant provision further states that the costs are to be borne in consideration of the parties’ degree of success in the proceedings. 21. In respect of the above and taking into account that the claim of the Claimant has been partially accepted, the Single Judge of the Players’ Status Committee concluded that both parties have 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 Single Judge held that the amount to be taken into consideration in the present proceedings is USD 189,629. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to currency of country H 20,000. 22. In conclusion, 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 15,000. Consequently and since the claim has been partially accepted, the Single Judge of the Players’ Status Committee decided that the amount of currency of country H 7,000 has to be paid by the Claimant and the amount of currency of country H 8,000 by the Respondent in order to cover the costs of the proceedings. III. Decision of the Single Judge of the Players’ Status Committee 1. The claim of the Claimant, Coach T, is partially accepted. 2. The Respondent, Club A, has to pay to the Claimant, Coach T, the total amount of USD 36,000, plus an interest of 5% per year on the said amount from 19 March 2013 until the date of effective payment, within 30 days as from the date of notification of this decision. 3. 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. 4. Any further claims lodged by the Claimant, Coach T, are rejected. 5. The final costs of the proceedings in the amount of currency of country H 15,000 are to be paid by both parties within 30 days as from the date of notification of the present decision as follows: 5.1 The amount of currency of country H 7,000 has to be paid by the Claimant, Coach T. Given that the latter already paid an advance of costs in the amount of currency of country H 2,000 at the start of the present proceedings, the remaining amount of currency of country H 5,000 has to be paid by the Claimant, Coach T. 5.2 The amount of currency of country H 8,000 has to be paid by the Respondent, Club A. 5.3 The above-mentioned amounts of currency of country H 2,000 and currency of country H 8,000 have to be paid to FIFA to the following bank account with reference to case nr.: 6. The Claimant, Coach T, is directed to inform the Respondent, Club A 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. ***** 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: Markus Kattner Deputy Secretary General Encl. CAS Directives