DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - COMMISSIONE PER LO STATUS DEI CALCIATORI - CONTROVERSIE ALLENATORI

• Data decisione: 18 agosto 2016 • Stagione sportiva: 2016/2017

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 18 August 2016

Decision of the Single Players’ Status Committee Players’ Status Committee

passed in Zurich, Switzerland, on 18 August 2016,

Mr Johan van Gaalen (South Africa),

Single Judge of the Players’ Status Committee,

on the matter between the following parties

Coach A, Country B

as “Claimant” or “First Counter-Respondent”

and

Club C

as “Second Counter-Respondent”

and

Football Association of Country D

as “Respondent” or “Counter-Claimant”

regarding a contractual dispute between the parties

I. Facts of the case

1. On 25 June 2013, the Coach of Country B, Coach A (hereinafter: the Claimant / First Counter-Respondent or simply: the Claimant) and the Football Association of Country D (hereinafter: the Respondent / Counter-Claimant or simply: the Respondent), concluded a first employment contract (hereinafter: the first contract), by means of which the Claimant was appointed “Olympic and Under 22 National Football Teams Football Manager”, valid as from 1 August 2013 until 31 July 2014.

2. In continuation, according to the Claimant, both parties concluded another employment contract on 31 January 2014, by means of which the Claimant was appointed “First National Football Team Manager” (hereinafter: the second contract), valid from 1 February 2014 until 31 January 2016. In this regard, the Claimant explained to have requested several times a signed version of the second contract without success. However, the Claimant argued to have received a copy of an email addressed by the Respondent´s President dated 29 July 2014, stating that “we have committed to sign for a two year contract”.

3. The first and the second contract provided the following remunerations, benefits and conditions for terminating the contract:

first contract

second contract

1º Basic Salary

(payable in equal instalments at the end of each calendar month)

USD 120,000/year (45,360)

USD 10,000/month (3,780)

USD 222,000/year (83,916)

6,993/month

2º Coaching Allowances

(for working as the First National Team Coach in addition to his work for the period between 1 September2013 to 31 March 2014)

USD 2,500/month (945)

3º House Allowance

700 /month

1,100/month

4º Mobile phone Allowance

40/month

5º Gym subscription

700/year

6º Bonuses

(A) “For every official tournament or championship that the Olympic or the under 22 National Teams compete, the First Party [i.e. the Respondent] will pay the Second Party [i.e. the Claimant]:

- 4 months’ salary for 1st place;

- 2 months’ salary for 2nd place;

(B) For each win of an official match during Continental Qualification, the Football Association of Country D is obliged to pay the Head Coach the amount of USD 3,000”.

(A) “Regional Tournament A: 3 months’ salary for first place;

(B) Regional Tournament B:

- 1st place USD 120,000 equal to 45,360;

- 2nd place two months’ salary;

- 1st place USD 150,000 equal to 56,700;

- 2nd place USD 70,000 equal to 28,350;

- 3rd place USD 50,000 equal to 18,900”.

7º Flight tickets

“4 round trip air tickets economy class between Country D and Country B”.

8º Conditions for terminating the contract

Clause 5 of the first contract:

1. “The First Party [i.e. the Respondent] may terminate the contract with the Second Party [i.e. the Respondent] at any time before the end of the contract, and it shall be committed in this case to pay the Second Party the remaining period of the contract or the salary of 3 months whichever is lesser.

2. In any case the party intended to terminate the contract, he shall inform the other party giving one month notice.

3. The First Party may immediately end the contract without an objection from the Second Party or his demand of any compensation, now or for the future, in the following cases:

Clause 4 of the second contract:

1. “If any party wants to terminate the contract at any time before the end of the contract, he has to pay to the other party salary of 7 months;

2. In case any party wants to terminate the contract, he shall inform the other party giving one month notice.

3. The First Party may immediately end the contract without an objection from the Second Party or his demand of any compensation, now or for the future, in the following cases:

- In case the second party did not resume work within 14 days without an acceptable excuse, which is accepted by the First Party.

- In case a punishment is issued by court against the Second Party in a crime, which is violating honour and honesty”.

4. On 28 August 2014, the Claimant lodged a claim in front of FIFA against the Respondent arguing that the latter had breached the second contract without just cause. In this respect, the Claimant requested from the Respondent the following amounts based on both the first and the second contract:

OUTSTANDING REMUNERATION:

 2,333 corresponding to the partial outstanding salary of August 2013, as well as 5% interest p.a. as from 1 September 2013;

 1,276 corresponding to the partial outstanding salary of September 2013, plus 5% interest p.a. on the said amount as from 1 October 2013;

 USD 3,000 as winning bonus for the victory against Country E in November 2013;

 USD 3,000 as winning bonus for the victory against Country F in November 2013;

 USD 3,000 as winning bonus for the victory against Country G in January 2014;

 Bonus for terminating the Regional Tournament A in 3rd place;

 340 “as reimbursement for filming opponent’s team performance”.

COMPENSATION FOR BREACH OF CONTRACT:

 USD 77,014 as compensation for breach of contract as well as 5%interest p.a. on this amount as from the alleged date of termination on 27 July 2014. According to the Claimant, the total compensation due corresponded to the remaining salaries from the breach until the end of the second contract, i.e. 125,874. However, in his calculation, the Claimant mitigated the compensation with the alleged remuneration he received after the signature of his new employment contract with the Federation of Country C on 4 August 2014 and valid from 1 September 2014 until 30 January 2016 for a total remuneration of 305,000;

 10,305 corresponding to the “end of service bonus and unused annual leaves” according to the labour law of Country D, as well as 5% interest p.a. as of 27 July 2014, i.e. the alleged date of termination of the contractual relationship.

5. According to the Claimant, from September 2013 until July 2014, the Respondent allegedly committed numerous breaches to the contracts which eventually led to the termination of the second contract on 27 July 2014.

6. In this regard, the Claimant argued that the Respondent paid the wrong amounts for the monthly salaries of August, September 2013, February and March 2014 respectively, and delayed the payment of the salary of April 2014 for 20 days. In continuation, according to the Claimant, the Respondent also failed to pay the stipulated bonuses. In this regard, the Claimant maintained that he had in vain sent several emails to the Respondent, requesting the latter to fulfil its contractual obligations. As a result, without any reply from the Respondent, the Claimant alleged that he had no other choice than to terminate the contract on 27 July 2014.

7. In reply to the claim lodged against it, the Respondent indicated that on 3 July 2014, the Club C (hereinafter: the Club C) requested permission to the Respondent to interview the Claimant for its vacant position for the national men´s head coach position. On the same date, the Respondent replied to Club C, rejecting the Club C’s request to interview the Claimant who was still under contract with the Respondent. In continuation, according to the Respondent, the Claimant terminated the second contract on 27 July 2014 “based on unfounded allegations” and without following the pre-notice of 1 month established in clause 4 of the second contract. The Respondent further stated that the Claimant was then announced as new head coach of the Club C on 5 August 2014. On 12 August 2014, the Respondent sent a letter to the Claimant informing him of his liability.

8. Concerning the alleged breach of contract, the Respondent maintained that all the due salaries had been paid and that the Claimant omitted to state that the amount of 3,190 corresponding to part of August and September 2013 was duly paid on 8 October 2013.

9. Concerning the requested outstanding bonuses linked to the first contract, the Respondent maintained that such payments of the bonuses were made once the funds were received from the National Olympic Committee, event that occurred when the Claimant had already left Country D and, therefore, cannot be used as reason to terminate the second contract since they were agreed in the first one only. Regarding the claimed sums in connection with the video recording of games and the default in providing the Claimant with a signed copy of the second contract, the Respondent maintained that they were not in first place breaches, since they were not contractually agreed and therefore cannot serve as a legal basis to terminate the second contract.

10. As a result, according to the Respondent, the Claimant terminated the second contract in order to leave Country D and sign a contract with the Club C. The Respondent also declared itself quite surprised with the sequence of events, considering the content of the letter sent from the Claimant to the Respondent´s President on 1 July 2014, in which the Claimant stated that “I [i.e. the Claimant] am very excited to get started in August, were moving to the right direction and we have good times to look forward to in the coming years.

11. As a consequence, the Respondent lodged a counterclaim against the Claimant as well as the Club C based on art. 17 par. 2 of the FIFA Regulations on the Status and Transfer of Players, claiming a jointly compensation for breach of contract in the total amount of USD 240,500, as well as 5% interest p.a. as of 25 July 2014 as follows:

 USD 129,500 corresponding to 7 months of salary pursuant to clause 4 of the second contract;

 USD 111,000 corresponding to 6 months of salary in accordance with the principle of specifisport.

12. In his reply to the counter-claim, the Claimant requested to dismiss the counterclaim in its entirety and indicated that the Respondent committed several breaches of contract which were even admitted by the latter in the correspondence sent by the Respondent´s President dated 28 and 29 July 2014 respectively. In those letters, the Respondent allegedly admitted to have made several late payments, to have not handled over a signed copy of the second contract, to have failed to reimburse him for the scouting DVDs, to have purchased late video equipment which were fundamental to exercise his duties as a coach.

13. As a consequence, the Claimant amended his initial claim and requested the following amounts:

OUTSTANDING REMUNERATION:

 USD 3,000 corresponding to a winning bonus for the victory against Country E in November 2013;

 USD 3,000 as winning bonus for the victory against Country F in November 2013;

 USD 3,000 as winning bonus for the victory against Country G in January 2014;

 Bonus for terminating the Regional Tournament A in 3rd place;

 340 “as reimbursement for filming opponent’s team performance”.

COMPENSATION FOR BREACH OF CONTRACT:

 USD 77,014 as compensation for breach of contract as well as 5% interest p.a. on this amount as from the date of termination on 27 July 2014. According to the Claimant, the total compensation due corresponded to the remaining salaries from the breach until the end of the second contract, i.e. 125,874. However, in his calculation, the Claimant mitigated the compensation with the remuneration he received after the signature of his new employment contract with the Federation of Country C on 4 August 2014 and valid from 1 September 2014 until 30 January 2016, for an allege total remuneration of 305,000.

14. In its final comments, the Respondent reiterated its previous arguments and clarified not having contested the amounts corresponding to the bonuses under the first contract were due. However, the Respondent, argued that this cannot serve as a basis to terminate the second contract.

15. Furthermore, the Respondent rejected the requested bonus of the Claimant for the result in the Regional Tournament A due to the lack of contractual basis.

16. Finally, the Respondent reiterated that the Club C shall be jointly liable for the requested payments included in the counter-claim, maintaining that the FIFA Regulations also applies, mutatis mutandi, to disputes between coaches and clubs.

17. On 30 October 2015, the Club C sent its position in the matter at hand and argued that “art. 17.2 of the FIFA Regulations” does not apply to coaches, but only to players. Therefore, the Club C deemed not being liable for any amounts that might have to be paid to the Respondent by the Claimant.

***

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 28 August 2014. Consequently, the Single Judge concluded that the 2014 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution (hereinafter: “the Procedural Rules”) is applicable to the matter in hand (cf. art. 21 of the Procedural Rules).

2. In continuation, 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 recalled that the claim was submitted to FIFA on 28 August 2014 and concluded that the 2014 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 (cf. art. 26 par. 1 and 2 of the Regulations).

3. Subsequently, the Single Judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that in accordance with art. 23 par. 1 and 3 in combination with art. 22 lit. c) of the 2014 edition of the Regulations, he would be, in principle, competent to deal with employment-related disputes between a club or an association and a coach of an international dimension.

4. His competence and the applicable regulations having been established, and entering into the substance of the matter, the Single Judge started his analysis by acknowledging the facts of the case and the arguments of the parties as well as the documents contained in the file. However, the Single Judge emphasised that in the following considerations he will only refer to the facts, arguments and

documentary evidence, which he considered pertinent for the assessment of the matter at hand.

5. In this respect and first of all, the Single Judge acknowledged that, on 31 January 2014, the Claimant and the Respondent had concluded an agreement valid from 1 February 2014 until 31 January 2016. In this context, the Single Judge also noted that, by means of a letter dated 27 July 2014, the Claimant had terminated its contractual relationship with the Respondent with effect as from said date, apparently due to the numerous breaches committed by him, inter alia: wrong amounts paid for certain monthly salaries, delay of payment for April 2014 and failed to pay the stipulated bonuses.

6. In continuation, the Single Judge remarked that, on the one hand, the Claimant had argued that as a consequence of the above and after having put the Respondent in default of its obligations several times, he terminated the agreement by means of the mentioned correspondence dated 27 July 2014. Consequently, the Claimant requested from the Respondent the payment of the outstanding salaries, bonuses and costs, as well as compensation for the breach of contract (cf. point I. 13 above).

7. On the other hand, the Single Judge observed that the Respondent alleged that the Claimant firstly entered into negotiations with the Club C which requested permission to negotiate an employment contract with the Claimant. Regarding the outstanding claimed amounts, the Respondent alleged that all the outstanding salaries were settled and additionally some of this amounts were linked to the first contract and cannot therefore be used to terminate the second contract. Due to this apparent unjustified breach, the Respondent lodged a counter-claim against the Claimant as well as the Club C claiming their jointly responsibility and requesting compensation in the amount of USD 129,500 corresponding to 7 months of salary pursuant to clause 4 of the second contract and the sum of USD 111,000 corresponding to 6 monthly salaries in accordance with the principle of specifisport.

8. In light of the above, the Single Judge deemed that he had to address the question of whether the second contract was terminated by the Claimant and whether such termination had occurred with or without just cause.

9. In doing so, the Single Judge noted that Claimant had never contested having terminated the second contract by means of the letter addressed to the Respondent on 27 July 2014. In continuation, the Single Judge referred to art. 12 par. 3 of the Procedural Rules which establishes that the burden of proof has to be carried by the party claiming a right on the basis of an alleged fact, and recalled that the Claimant, at the time he addressed the termination letter to the Respondent and lodged the claim, based the termination on the following alleged breaches:

a. Partial outstanding amounts corresponding to the monthly salaries of August, September and October 2013, and winning bonuses for two games in November 2013 and one in January 2014, and therefore all deriving from the first contract;

b. Bonus for terminating the Regional Tournament A in 3rd place;

c. Wrong amounts paid in February and March 2014 and delay for the April 2014 monthly salary of 20 days;

d. 340 “as reimbursement for filming the opponents team performance”;

10. In this regard, the Single Judge analysed the alleged breaches and firstly concluded that the allegedly outstanding salaries and bonuses deriving from the first contract, cannot served as a legal basis to terminate the second contract.

11. In continuation, and regarding the rest of the alleged breaches, the Single Judge considered that Respondent had not provided FIFA with sufficient and clear documentary evidence supporting his requests in accordance with art. 12 par. 3 of the Procedural Rules and in any case such alleged breaches would not be of enough severity to justify the termination of the second contract. Additionally, the Single Judge noticed that the Claimant’s request with regard to the alleged reimbursement of monies for “filming the opponent’s team performance” lacked of contractual basis.

12. Furthermore, the Single Judge was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract without prior warning. In other words, only when there are objective criteria which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. A premature termination of an employment contract can always only be an ultima ratio.

13. Additionally, and regarding the letters enclosed by the Claimant requesting the Respondent to fulfil its obligations, the Single Judge was of the opinion that those correspondences did not constitute a formal default notice, and even more considering the recent correspondence sent by the Claimant to the Respondent before the termination on 1 July 2014 and underlining his excitement and commitment for the upcoming years of contractual relationship. Finally and in addition of the abovementioned considerations, the Single Judge also considered at least suspicious that the termination occurred after the Respondent received a letter from the Club C in July 2014 requesting permission to negotiation with the Claimant, and that immediately after the termination, the Claimant signed a new employment contract with the Club C.

14. In view of the above mentioned, the Single Judge decided that the circumstances surrounding the parties and the alleged breaches alleged by the Claimant, cannot be considered a just cause for him to cease rendering his services to the Respondent and as a consequence, the Claimant had breached the second contract without just cause.

15. Having established that the Claimant is to be held liable for the early termination of the employment contract as of 27 July 2014, the Single Judge went on to consider the counterclaim lodged by the Respondent and the amount of compensation that should be granted following the Claimants´ unjustified termination of the contract.

16. Having established the above-mentioned, the Single Judge went on to assess the potential financial consequences of the breach of the contractual relationship by the Claimant.

17. In this regard, upon a careful examination of the second contract concluded between the Claimant and the Respondent, the Single Judge took note that clause 4 of said contract provided that “If any party wants to terminate the contract at any time before the end of the contract, he has to pay the other party salary of 7 months”.

18. The Single Judge duly analysed the contents of said clause and acknowledged that the aforementioned clause provides for a specific amount of compensation payable in the event of the termination of the contract by the Claimant or the Respondent.

19. On account of the above, the parties having contractually agreed on the compensation payable in the event of breach of contract and such compensation not being deemed disproportionate, the Single Judge concluded that the provision contained under clause 4 of the second contract has to be considered as valid and fully effective, i.e. the amount of compensation provided for in said clause shall be awarded to the Respondent.

20. Consequently, the Single Judge concluded that the amount of USD 129,500 corresponding to 7 months of salary pursuant to clause 4 of the second contract serves as the basis for the final determination of the amount of compensation for breach of contract. However, the Single Judge was eager to emphasise that the Respondent admitted not having paid the winning games bonuses (cf. point I. 13 above) in the total amount of USD 9,000 to the, and as a result said amount must be deducted from the awarded compensation.

21. Subsequently, the Single Judge analysed the request of the Respondent in the counter-claim corresponding to 6 monthly salaries in accordance with the principle of specifisport for a total amount of USD 111,000. In this regard, the Single Judge deemed it appropriate to point out that the request for said compensation presented by the Respondent had no legal or regulatory basis and pointed out that no corroborating evidence had been submitted that demonstrated or quantified the damage suffered in accordance with art. 12 par. 3 of the Procedural Rules.

22. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Single Judge decided that the Claimant must pay the amount of USD 120,500 as compensation for breach of contract as well as 5% interest per year on the said amount from 27 July 2014 until the date of effective payment.

23. For the sake of completeness and regarding the request of the Respondent that referred to art. 17 par. 2 of the Regulations to consider the Club C jointly liable for the requested payments, the Single Judge was keen to recall that art. 17 par. 2 of the Regulations is only applicable in the context of contractual dispute arisen between a player and a club.

24. 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 its Single Judge, costs in the maximum amount of CHF 25,000 are levied. The costs are to be borne in consideration of the parties’ degree of success in the proceedings (cf. art. 18 par. 1 of the Procedural Rules).

25. In respect of the above, and taking into account that the Respondent counter-claim was partially accepted, the Single Judge concluded that both the Claimant as well as the have to bear a part of the costs of the current proceedings before FIFA.

26. 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. Consequently and taking into account that the total amount at dispute in the present matter is over CHF 200,001 the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

27. In conclusion, and considering the particularities of the present matter, the Single Judge determined the costs of the current proceedings to the amount of CHF 20,000. Furthermore, and in line with his aforementioned considerations and taking into account the degree of success, the Single Judge decided that the amount of CHF 10,000 has to be paid by the Claimant and the amount of CHF 10,000 by the Respondent.

28. Lastly, an oversight seems to have regretfully occurred in point 4. of the findings of the decision. Indeed, point 4. should read:

“The Claimant / First Counter-Respondent, Coach A, has to pay to the Respondent / Counter-Claimant, Football Association of Country D, within 30 days as from the date of notification of the present decision, the amount of USD 120,500 as compensation for breach of contract as well as 5% interest per year on the said amount from 27 July 2014 until the date of effective payment”.

29. On account of the above, and in order to remedy the aforementioned oversight, a rectification to the findings of the decision has been proceeded in accordance with the correction expressed above.

***

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

1. The claim of the Claimant / First Counter-Respondent, Coach A, against the Respondent / Counter-Claimant, Football Association of Country D, is rejected.

2. The counter-claim of the Respondent / Counter-Claimant, Football Association of Country D/ Respondent, against the Second Counter-Respondent, is inadmissible.

3. The counter-claim of the Respondent / Counter-Claimant, Football Association of Country D, against the Claimant / First Counter-Respondent, is partially accepted.

4. The Claimant / First Counter-Respondent, Coach A, has to pay to the Respondent / Counter-Claimant, Football Association of Country D, within 30 days as from the date of notification of the present decision, the amount of USD 120,500 as compensation for breach of contract as well as 5% interest per year on the said amount from 27 July 2014 until the date of effective payment.

5. If the aforementioned amount and 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. Any further claims lodged by the Respondent / Counter-Claimant, Football Association of Country D, are rejected.

7. The final costs of the proceedings in the amount of CHF 20,000 are to be paid by both the Claimant / First Counter-Respondent, Coach A and the Respondent / Counter-Claimant, Football Association of Country D, to FIFA, within 30 days as from the date of notification of the present decision, as follows:

7.1 The amount of CHF 10,000 has to be paid by the Claimant / First Counter-Respondent, Coach A. Given that the latter has already paid the amount of CHF 5,000 as advance of costs at the start of the present proceedings, the amount of CHF 5,000 has to be paid by the Claimant / First Counter-Respondent, Coach A;

7.2 The amount of CHF 10,000 has to be paid by the Respondent / Counter-Claimant, Football Association of Country D. Given that the latter has already paid the amount of CHF 5,000 as advance of costs during the present proceedings, the amount of CHF 5,000 has to be paid by the Respondent / Counter-Claimant, Football Association of Country D.

7.3 The abovementioned amounts in points 7.1 and 7.2 have to be paid 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

8. The Respondent / Counter-Claimant, Football Association of Country D, is directed to inform the Claimant / First Counter-Respondent, Coach A, immediately and directly of the account number to which the remittance under point 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. 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 / www.tas-cas.org

For the Single Judge of the

Players’ Status Committee

Marco Villiger

Deputy Secretary General