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 28 September 2016

Decision of the Single Judge of the Players’ Status Committee

passed in Zurich, Switzerland, on 28 September 2016,

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 between the parties

I. Facts of the case

1. On 15 May 2012, the coach of Country B, Coach A (hereinafter: the Claimant) and the club of Country D, Club C (hereinafter: the Respondent) entered into a “Labor Contract” (hereinafter: the employment contract) valid from 1 July 2012 until 30 June 2015, according to which the Claimant was hired by the Respondent as “Head Coach”.

2. On 17 June 2013, the Claimant and the Respondent concluded two documents called “TERMINATION AGREEMENT to the Labor contract dd. 15 may 2012” (hereinafter: the termination agreement) and “ANNEX 1 to the Termination Agreement to the Labor Contract dd. 15 may 2012” (hereinafter: the annex) respectively, under the terms of which the parties concerned mutually agreed upon the termination of the employment contract.

3. The annex stipulated in art. 3 that “[T]he Club [i.e. the Respondent] shall pay to the Coach [i.e. the Claimant] the salary for June 2013 which remains unpaid by the day of termination of the Labor contract [i.e. the employment contract] no later than 30 June 2013”.

4. Furthermore and according to art. 4 of the annex, the parties agreed that ”[T]he Club [i.e. the Respondent] shall pay to the Coach [i.e. the Claimant] the additional premium, stipulated by clause 6.3 of the Labor contract [i.e. the employment contract], in the amount of 666600 (six hundred sixty six thousand and six hundred) Euros before deduction of the individuals income tax (which is 579942 Euros net), which shall be paid no later than 15 July 2013”.

5. Pursuant to art. 5 and 6 of the annex, “[D]ue to premature termination of the Labor contract [i.e. the employment contract] the Club [i.e. the Respondent] shall pay to the Coach [i.e. the Claimant] a compensation amounting to 4042000 (four million forty two thousand) Euros before deduction of the individuals income tax (which is guaranteed 3515540 Euros net). No other compensation, expect for specified in this agreement, shall be paid to the Coach. […] The compensation shall be paid in Currency of Country D at a currency rate of the Central Bank of Country D on the day of charge as follows:

- 1 019 000 Euro including tax – no later than 30 June 2013;

- 1 000 000 Euro including tax – no later than 30 November 2013;

- 1 000 000 Euro including tax – no later than 31 January 2014;

- 1 023 000 Euro including tax – no later than 28 February 2014”.

6. The annex also stipulated that the “additional premium” as well as the compensation shall be paid in Currency of Country D (hereinafter: Currency E) “at a currency rate of the Central Bank of Country D on the day of charge” and “according to the personal income tax in Country D – 13%”.

7. Art. 7 of the annex provided that “[A]ny dispute that may arise in connection with this Annex may be submitted for resolution to a dispute resolution body according to the rules of the Football Union F or the rules of FIFA”.

8. On 15 August 2014, the Claimant lodged a claim in front of FIFA against the Respondent, arguing that the latter had “defectively and improperly performed its payment obligations due to application of the defective exchange rate of Currency E versus the Euro set forth by the Central Bank of Country D” and to have received from the Respondent a total amount “which is less than the Euro equivalent of payments due to the Claimant, which were guaranteed to the Claimant under the Termination agreement”.

9. In this respect, the Claimant explained to have received on 15 July 2013 from the Respondent the payment of 24,615,049.70 based on art. 4 of the annex, whereas the Claimant deemed being entitled to 24,740,325.70 allegedly equivalent to EUR 579,942 in accordance with the exchange rate “set forth by the Central Bank of Country D on 15 July 2013”. Therefore, the Claimant argued that the sum of 125,276 (equivalent to EUR 2,936.20) was still outstanding.

10. Furthermore, the Claimant explained to have received from the Respondent several payments in accordance with art. 5 and 6 of the annex as follows:

- 37,628,056.80 on 28 June 2013 (equivalent to EUR 878,169);

- 36,926,454 on 29 November 2013 (equivalent to EUR 818,807);

- 36,926,554 on 30 January 2014 (equivalent to EUR 774,446);

- 37,775,761.60 on 28 February 2014 (equivalent to EUR 764,459).

11. However, the coach argued that the abovementioned payments were made with the wrong exchange rate. Therefore, the coach requested from the club the payment of 12,507,123 (equivalent to EUR 261,609.20), which were still outstanding.

12. Consequently, the coach requested from the club the equivalent in Currency E of EUR 256,001.40, i.e. EUR 2,936.60 plus EUR 261,609.20 less EUR 8,544.40 allegedly already received.

13. In its reply dated 20 October 2014, the club first contested the competence of FIFA to deal with the present dispute explaining that the NDRC Regulations of Country D guarantee fair proceedings at national level.

14. The Respondent provided a copy of the Football Union F NDRC Regulations which were approved by a decision of the Executive Committee of the Football Union F on 2 December 2013 and came into force on 1 April 2014.

15. In this regard, art. 3.1 of the Regulations of the Football Union F establishes the competence of the Football Union F NDRC for disputes involving coaches: “clubs, players, coaches, players’ agents and other subjects of football under Football Union F Regulations on the Status and Transfer of Football Players have to right to apply to the Chamber”.

16. Moreover, art. 7 and art. 8 of the Football Union F NDRC Regulations establishes inter alia the DRC composition:

Art. 7 Chamber Composition

1. The Chamber consists of the following members:

a) Chairman, Deputy Chairman, elected according to art. 8.1 of these Regulations;

b) 10 representatives of players’ unions, recommended by the trade unions in accordance with Article 8 of these Regulations;

c) 10 representatives of professional football clubs recommended by Leagues in accordance with these Regulations […].

Art. 8 The Procedure for Chamber Constitution by the Representatives of Football Clubs and Professional Football Players

1. 10 seats for representatives of professional football clubs shall be distributed as follows: - 5 seats - for representatives of professional football clubs of the Football Premier League of Country D;

- 2 seats - for representatives of professional football clubs of the National Football League;

- 1 seat - for representatives of football clubs of the Professional Football League;

- 1 seat - for futsal’s representative;

- 1 seat – for Women’s football representative.

2. Professional players’ representatives shall be recommended by the top managing body of respective League of, by the consent of the President of the Football Union F, by the Board;

4. Players’ unions’ representatives shall be recommended by the top managing body of the union (unions’ association), registered in Country D and subject to any of the following conditions:

- such association shall consist of a all-Country D players’ union and a players’ union recognized by FIFPro;

- such association is recognized by FIFPro […]”.

Art. 8.1 Elections of the Chairman and Deputy Chairman of the Chamber

1. The list of candidates to the position of the Chairman of the Chamber in the amount of 5 persons, as well as 5 candidates to the position of the Deputy Chairman shall be approved by the Executive Committee of the Football Union F, but taking into account opinions of members of football family.

17. With regard to the possibility of appealing decisions, art. 53 of the NDRC Regulations of Country D stipulates that: “The Chamber decision can be appealed only to Committee within 5 business days of the receipt of the decision with grounds;

The Committee decision may be appealed only to the Court of Arbitration for Sports (Tribunal Arbitral du Sport) in Lausanne (Switzerland) within twenty-one (21) calendar days of receipt of the decision with grounds”.

18. Alternatively and as to the substance, the Respondent deemed having already paid all its debts towards the Claimant in accordance with the termination agreement and the annex. In this respect, the Respondent maintained that the Claimant intentionally “mixed up definitions CHARGE and PAYMENT” which are, according to the Respondent, two very different notions known by the Claimant.

19. Consequently, the Respondent argued that the payment had to be paid “at a currency rate of the Central bank of Country D on the day of charge” and, therefore, deemed to have paid everything to the Claimant.

20. In his replica, the Claimant reiterated his initial complaint and added that at the time of the claim, “Football Union F, DRC was not constituting an independent arbitration tribunal guaranteeing fair proceedings”. The Claimant further stated that according to art. 7 of the annex, FIFA was the competent decision-making body. Therefore, the Claimant deemed that FIFA was competent to hear the present dispute.

21. The Claimant further requested the “payment of interest accrued upon the amount in dispute for a period beginning on February 2014 and ending on the date of delivery of the decision by the FIFA Players’ Status Committee, at the interest rate as provided for in the Labor Code of Country D”.

22. On 19 July 2016, the Respondent provided its last position in the present dispute and reiterated all its previous allegations. In particular, the Respondent contested once again the competence of FIFA to deal with the present matter.

23. As to the substance, the Respondent finally emphasised that “the charged amount for payment (which were separated and paid according to the dates mentioned in the agreement) consisted of the amount mentioned in the agreement -13% (because the coach [i.e. the Claimant] was a resident in the moment of signing of the agreement [i.e. the termination agreement and the annex]) and calculated at a rate of the Central Bank of Country D of the day of charge (17 June 2013 year)”. Therefore, the Respondent argued to have paid everything to 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 referred to art. 21 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (editions 2014 and 2015). Consequently, and since the present matter was submitted to FIFA on 15 August 2014, the Single Judge concluded that the 2014 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. 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, 2015 and 2016 editions 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.

3. As a consequence, the Single Judge would, in principle, be the competent body to decide on the present litigation involving a coach from Country B and a club affiliated to the Football Union F(hereinafter: FU of Country D).

4. However, the Single Judge acknowledged that the Respondent had contested the competence of FIFA’s deciding bodies arguing that the National Dispute Resolution Chamber of the Football Union F was the competent instance to resolve on the dispute in question.

5. In this respect, the Single Judge recalled that art. 7 of the annex did mention the non-exclusive competence of FIFA in case of a dispute arisen between the parties. Hence, the Single Judge concluded that the parties had not agreed upon the exclusive jurisdiction of the National Dispute Resolution Chamber of the Football Union F and had not excluded the competence of FIFA to take a decision on a dispute arising between the parties.

6. As a result of the aforementioned, the Single Judge concluded that the Respondent’s objection towards the competence of FIFA to deal with the present matter has to be rejected, and that the Single Judge of the Players’ Status Committee is competent, on the basis of art. 23 par. 1 and 3 in combination with

art. 22 lit. c) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance.

7. 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 referred, on the one hand, to art. 26 par. 1 and 2 of the 2014 and 2015 editions of the Regulations on the Status and Transfer of Players, and on the other hand, to the fact that the present claim was lodged with FIFA on 15 August 2014. In view of the foregoing, the Single Judge 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).

8. 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.

9. In doing so, the Single Judge first noted that, on 17 June 2013, the Claimant and the Respondent had concluded a termination agreement and an annex respectively, under the terms of which the parties concerned mutually agreed upon the termination of their contractual relationship.

10. In continuation, the Single Judge remarked that in accordance with the annex concluded by the parties concerned, the Claimant was entitled to receive from the Respondent his salary of June 2013 by no later than 30 June 2013, “additional premiums” totalling EUR 579,942 net (i.e. EUR 666,600 gross) as well as compensation for a total amount of EUR 3,515,540 net (i.e. EUR 4,042,000 gross) payable in four different instalments “including tax” of 1,019,000 on 30 June 2013, EUR 1,000,000 on 30 November 2013 and on 31 January 2014 as well as EUR 1,023,000 on 28 February 2014, respectively.

11. Likewise, the Single Judge took note that the annex also stipulated that the “additional premium” as well as the compensation shall be paid “at a currency rate of the Central Bank of Country D on the day of charge” and “according to the personal income tax in Country D – 13%”.

12. The Single Judge also observed that in his claim to FIFA, the Claimant had accused the Respondent of having “defectively and improperly performed its payment obligations due to application of the defective exchange rate versus the Euro set forth by the Central Bank of Country D” and thus received from the Respondent a total amount in Currency E“which is less than the Euro equivalent of payments due to the Claimant, which were guaranteed to the Claimant”. Furthermore and

in the same context, the Single Judge remarked that, for its part, the Respondent had insisted to have paid all its debts towards the Claimant as per the termination agreement and the annex “at a currency rate of the Central bank of Country D on the day of charge”.

13. At this stage, the Single Judge recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

14. According to this principle, the Single Judge noted that the Respondent did not submit any evidence corroborating its statement of defence and, therefore, decided to reject it.

15. In continuation, the Single Judge observed that the Claimant, for his part, substantiated his allegations by providing the applicable exchange rates published by the Central Bank of Country D on the dates of the respective payments from the Respondent to the Claimant which were the following:

a. on 28 June 2013, established at 42,83 per EUR 1;

b. on 15 July 2013, established at 42.66 per EUR 1;

c. on 29 November 2013, established at 44,99 per EUR 1;

d. on 30 January 2014, established at 47,22 per EUR 1;

e. on 28 February 2014, established at 49,34 per EUR 1.

16. Therefore, the Single Judge concluded that the Claimant did satisfactorily carry the burden of proof and proved that the Respondent did not pay the respective amounts to the Claimant in accordance with the applicable exchange rates.

17. As a consequence, and in accordance with the principle of pacta sunt servanda, the Single Judge decided that the Respondent is liable to pay outstanding remuneration in the amount of 18,489,376 to the Claimant. In this regard, the Single Judge was eager to emphasise that, in accordance with its well-established jurisprudence in this respect, he cannot grant any outstanding amounts in EUR, as the parties had agreed upon payment of the Claimant’s remuneration .

18. 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 the proceedings before the Players’ Status Committee and the 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 and are normally to be paid by the unsuccessful party.

19. In this respect, the Single Judge reiterated that the claim of the Claimant is accepted and that the Respondent is the party at fault. Therefore, the Single Judge decided that the Respondent has to bear the entire costs of the current proceedings in front of FIFA.

20. 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 above CHF 200,001, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

21. In conclusion and in view of a number of factual complexities that had to be addressed but taking into account that the present decision was taken by the Single Judge and not by the Players’ Status in corpore, the Single Judge determined the costs of the current proceedings to the amount of CHF 20,000.

22. Consequently, the amount of CHF 20,000 has to be paid by the Respondent to cover the costs of the present proceedings.

***

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

1. The claim of the Claimant, Coach A, is admissible.

2. The claim of the Claimant, Coach A, is accepted.

3. The Respondent, Club C, has to pay to the Claimant, Coach A, the outstanding amount of 18,489,376, within 30 days as from the date of notification of the present decision.

4. In the event that the aforementioned amount is not paid within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

5. The final costs of the proceedings in the amount of CHF 20,000 are to be paid by the Respondent, Club C, within 30 days as from the notification of the present decision as follows:

5.1 The amount of CHF 15,000 has to be paid directly to FIFA to the following bank account with reference to case nr.:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

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

6. 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 3. and 5.2 above are 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

For the Single Judge of the

Players’ Status Committee

Marco Villiger

Deputy Secretary General

Encl. CAS directives