F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – coach disputes / controversie allenatori (2016-2017) – fifa.com – atto non ufficiale – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 28 June 2017

Decision of the Single Judge of the Players’ Status Committee

passed in Zurich, Switzerland, on 28 June 2017,

by

Geoff Thompson (England)

Single Judge of the Players’ Status Committee,

on the claim presented by the coach

Coach A, Country B

as “Claimant”

against the club

Club C, Country D

as “Respondent”

regarding a contractual dispute arisen between the parties.

I. Facts of the case

1. On 15 July 2016, the Coach of Country B, Coach A (hereinafter: “the Claimant”) and the Club of Country D, Club C (hereinafter: “the Respondent”) concluded an employment contract (hereinafter: “the contract”), valid from 7 July 2016 until 6 July 2017.

2. According to clause IV.1 of the contract, “the remuneration of the coach [i.e. the Claimant] shall be set out in the Schedule attached to this contract and signed by the parties. The schedule shall include all remuneration to which the coach [i.e. the Claimant] is or may be entitled”.

3. Clause VIII.1 of the contract stated: “The club [i.e. the Respondent] and the coach [i.e. the Claimant] shall be entitled to terminate this contract, before its expiry date as cited above, by mutual agreement, or with just cause, by giving fifteen (15) days’ written notice in accordance with the FIFA Regulations governing this matter as well as the laws of the State of Country D”.

4. Clause VIII.2 of the contract provided that: “In case of early termination without just cause or without mutual agreement, the Club [i.e. the Respondent] or the Coach [i.e. the Respondent], as the case may be, shall, on account of such breach of contract, be entitled to receive from the other party a sum of compensation equivalent to the total remaining net amounts that the coach [i.e. the Claimant] would have been entitled to be paid by the club [i.e. the Respondent] under this contract, had such early termination not occurred (that is: the total remaining net sums that would have been due from the date of such early termination through to the proper scheduled date of termination as formally agreed to by the parties above). The parties agree that such indemnity for wrongful early termination is just and fair and cannot be reduced for any reason”.

5. The Claimant and the Respondent signed an additional document called “Football Coach employment Contract–SCHEDULE-“ (hereinafter: “the schedule”) by means of which the Respondent compromised to pay to the Claimant the following amounts on a net basis:

Advance Payments:

 EUR 510,000 payable no later than 10 days after both parties have signed the contract as advance payment in respect of the season 2016/2017;

 EUR 340,000 payable no later than 30 days after both parties have signed the contract as advance payment in respect of the season 2016/2017.

First Season Salary 2016/2017:

The total amount of salary to be paid by the Respondent to the Claimant for the 2016/2017 season is EUR 550,000 which would be payable in 10 equal monthly instalments of EUR 55,000 from 1 August 2016 until 30 May 2017.

6. On 20 February 2017, the Claimant lodged a claim in front of FIFA against the Respondent alleging that the latter had terminated the contract without just cause and requesting the total amount of EUR 1,060,000, plus an annual interest at a rate of 6% applicable from 31 October 2016 until the date of effective payment, as follows:

(1) EUR 510,000 as the advance payment due on 25 July 2016 (cf. point 5 above);

(2) EUR 165,000 (EUR 55,000 x 3) as outstanding salaries which were due on 1 August 2016; 1 September 2016 and 1 October 2016 (cf. point 5 above).

(3) EUR 385,000 as compensation for the premature termination of the contract equivalent to the residual value of the contract (i.e. 7 months from 31 October 2016 and until 7 July 2017) in accordance with clause VIII.2 of the contract.

7. In this respect, the Claimant explained that on 31 October 2016, only 3 months and 15 days after the conclusion of the contract, the Respondent unilaterally and without valid reasons terminated the contract with him and with his staff. The Claimant added that he was always at the Respondent´s disposal.

8. In this regard, the Claimant enclosed three media reports which mentioned that allegedly the Respondent suspended the Claimant and two days later on 2 November 2016 the Respondent fired the Claimant and appointed a new coach.

9. In addition, the Claimant alleged that he remained in Country D with his staff until 18 November 2016 waiting to settle this matter in an amicable way without success.

10. Moreover, the Claimant stated that until the unjustified termination of the contract by the Respondent, the latter only paid him the amount of EUR 340,000 due on 15 August 2016.

11. Despite having been granted an extension of deadline, the Respondent did not reply to the Claimant’s claim.

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 whether he was competent to deal with the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 20 February 2017. Consequently, the Single Judge concluded that the 2017 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 matter at hand (cf. art. 21 of the Procedural Rules).

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 2016 edition of the Regulations on the Status and Transfer of Players, he shall adjudicate on an employment-related dispute between a club or an association and a coach that have an international dimension. As a consequence, the Single Judge confirmed that he was the competent body to decide on the present employment-related dispute involving a Coach of Country B and a club affiliated to the Football Association of Country D.

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 confirmed that in accordance with the art. 26 par. 1 and 2 of the edition 2016 of the said Regulations and taking into account the fact that the present claim was lodged in front of FIFA on 20 February 2017, the 2016 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. The competence of the Single Judge and the applicable regulations having been established, and entering into the substance of the matter, the Single Judge started by acknowledging the above-mentioned facts as well as the documentation contained in the file. However, the Single Judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.

5. In this respect and first of all, the Single Judge observed that the Respondent did not submit its position to the claim lodged against it by the Claimant, despite having been asked to do so by FIFA. Therefore, the Single Judge concluded that, in this way, the Respondent had renounced to its right of defence and, thus, it had to be assumed that it accepted the allegations of the Claimant.

6. Bearing in mind the aforementioned, the Single Judge referred to art. 9 par. 3 of the Procedural Rules and pointed out that in the present matter a decision shall be taken upon the basis of the documents on file, in other words, upon the allegations and documents submitted by the Claimant.

7. At this stage, the Single Judge took note that on 15 July 2016 the Claimant and the Respondent concluded the contract valid until 6 July 2017. Moreover, the Single Judge acknowledged that said parties signed another document, i.e. the schedule, by means of which both parties made specific agreements with regard to the Claimant´s remuneration.

8. In this respect, the Single Judge focussed his attention on the content of the schedule and emphasised that the Respondent and the Claimant contractually agreed that the latter would receive from the Respondent the following amounts:

 EUR 510,000 payable no later than 10 days after both parties have signed the contract as advance payment in respect of the season 2016/2017;

 EUR 340,000 payable no later than 30 days after both parties have signed the contract as advance payment in respect of the season 2016/2017 and

 EUR 55,000 as monthly salary, from 1 August 2016 until 30 May 2017.

9. In continuation, the Single Judge pointed out that according to the Claimant´s allegations, on 31 October 2016 the Respondent communicated to him the termination of the contract without however justified reasons and that two days later the Respondent appointed a new coach.

10. In this context, the Single Judge deemed appropriate to reiterate that, during the investigation of the matter at stake, the Respondent did not provide with its position to the claim lodged against it and, therefore, it has to be assumed that it did not contest any of the allegations or documentary evidence provided by the Claimant.

11. In view of all of the above, the Single Judge was of the opinion that it remained undisputed that on 31 October 2016 the Respondent terminated the contract with the Claimant without just cause. What is more, the Single Judge emphasised that, in accordance with the general principle of pacta sunt servanda which in essence means that agreements must be respected by the parties in good faith, the Respondent must fulfil the obligations it voluntarily entered into with the Claimant by means of the contract and the schedule signed between the parties.

12. Therefore, the Single Judge decided to accept the Claimant´s request for the total amount of EUR 675,000 as outstanding remuneration in accordance with the schedule, composed of EUR 510,000 and EUR 165,000.

13. In continuation, the Single Judge took note that the Claimant had requested the application of a 6% annual interest over the claimed remuneration as from the date of termination of the contract. In this respect, the Single Judge decided to reject such request as it lacks any contractual basis.

14. Notwithstanding the above and in accordance with the well-established jurisprudence of the FIFA´s deciding bodies and their standard practice, the Single Judge deemed appropriate to grant an interest at a rate of 5% per annum over the outstanding amounts to be accrued as of the date of termination, as requested, until the date of effective payment.

15. In continuation, the Single Judge focused on the Claimant´s request for an amount of EUR 385,000 as compensation for the Respondent´s unjustified termination of their contractual relationship.

16. In this regard, the Single Judge referred to the content of clause VIII.2 of the contract which stated that “In case of early termination without just cause or without mutual agreement, the Club [i.e. the Respondent] or the Coach [i.e. the Respondent], as the case may be, shall, on account of such breach of contract, be entitled to receive from the other party a sum of compensation equivalent to the total remaining net amounts that the coach [i.e. the Claimant] would have been entitled to be paid by the club [i.e. the Respondent] under this contract, had such early termination not occurred (that is: the total remaining net sums that would have been due from the date of such early termination through to the proper scheduled date of termination as formally agreed to by the parties above). The parties agree that such indemnity for wrongful early termination is just and fair and cannot be reduced for any reason”.

17. The Single Judge pointed out that since the amount of compensation was contractually agreed by the parties, said amount of compensation should therefore be awarded to the Claimant as per clause VIII.2 of the contract which expressly provided for an amount equivalent to the residual value of the contract. Along these lines, the Single Judge considered that such determinable amount is neither excessive nor disproportionate.

18. Consequently, and taking into account that the contract was valid until 6 July 2017 and that the schedule provided a monthly salary until 30 May 2017, the Single Judge decided that the Claimant was entitled to his salary for the period from 31 October 2016 until 30 May 2017 as compensation for the unilateral termination of the contract without just cause by the Respondent.

19. Therefore, the Single Judge decided that the Claimant was entitled to receive from the Respondent the total sum of EUR 385,000, i.e. 7 monthly salaries (1 November 2016 until 31 May 2017) of EUR 55,000 each, as compensation for breach of contract.

20. Moreover, the Single Judge took note that the Claimant had requested an annual interest of 6% over the damage compensation. In this regard, the Single Judge reiterated his previous considerations (numbers 14 and 15) and decided to grant interest at a rate of 5% per year over the relevant compensation amounting to EUR 385,000 as from the date on which the Claimant lodged the present claim at FIFA, i.e. 20 February 2017, in accordance with the well-established jurisprudence of the Players’ Status Committee.

21. In view of all the above-mentioned considerations, the Single Judge decided that the claim of the Claimant is partially accepted and that the Respondent has to pay to the Claimant the amount of EUR 675,000 as outstanding salaries, as well as the amount of EUR 385,000 as compensation for breach of contract plus the respective applicable interest.

22. Finally, the Single Judge referred to art. 25 par. 2 of the Regulations in combination with art. 18 par. 1 of the Procedural Rules, according to which, in the proceedings before the Players’ Status Committee, including the Single Judge, costs in the maximum amount of CHF 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.

23. 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. The amount in dispute to be taken into consideration in the present proceedings is EUR 1,060,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

24. Considering that, in the case at hand, the responsibility of the failure to comply with the agreement can entirely be attributed to the Respondent and taking into account that the particular circumstances of the present matter, the Single Judge determined the costs of the current proceedings in the amount of CHF 25,000 and held that such costs have to be borne by the Respondent.

25. In conclusion, the amount of CHF 25,000 has to be paid by the Respondent in order to cover the costs of the present proceedings.

26. The Single Judge concluded his deliberations by establishing that any other claim lodged by the Claimant is rejected.

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

1. The claim of the Claimant, Coach A, is partially accepted.

2. The Respondent, Club C, has to pay to the Claimant, Coach A, within 30 days as from the date of notification of this decision, the total amount of EUR 675,000 as outstanding remuneration plus interest at a rate of 5% per year from 31 October 2016 until the date of effective payment.

3. The Respondent, Club C, has to pay to the Claimant, Coach A, within 30 days as from the date of notification of this decision, the amount of EUR 385,000 as compensation plus interest at a rate of 5% per year from 20 February 2017 until the date of effective payment.

4. Any further claims lodged by the Claimant, Coach A, are rejected.

5. If the aforementioned amounts plus interest 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.

6. The final costs of the proceedings in the amount of CHF 25,000 are to be paid by the Respondent, Club C, within 30 days as from the date of notification of this decision, as follows:

6.1 The amount of CHF 20,000 has to be paid to FIFA to the following bank account with reference to case nr. XXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

6.2 The amount of CHF 5,000 has to be paid to the Claimant, Coach A.

7. The Claimant, Coach A, is directed to inform the Respondent, Club C, immediately and directly of the account number to which the remittances under points 2., 3. and 6.2 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 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, 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

For the Single Judge of the

Players’ Status Committee

Omar Ongaro

Football Regulatory Director

Encl. CAS directives