F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – coach disputes / controversie allenatori (2017-2018) – fifa.com – atto non ufficiale – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, 27 July 2016

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 27 July 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 an employment-related contractual dispute

arisen between the parties.

I. Facts of the case

1. On an unspecified date, the Coach of Country B, Coach A (hereinafter: the Claimant) and the Club of Country D, Club C (hereinafter: the Respondent) entered into an employment contract (hereinafter: the employment contract) valid for 12 months from 1 July 2013, according to which the Respondent hired the Claimant as “Assistant Coach of the First Football Team”. In this respect, the employment contract stipulated in clause IV that the Claimant was entitled to receive from the Respondent the total amount of USD 132,000, payable in twelve monthly salaries of USD 11,000.

2. In addition, the employment contract stipulated that “[I]n case of dispute on this contract or misinterpretation of its provision, both parties are committed to submit the matter to the Football Federation of Country D and FIFA governing bodies. Decisions issued in this case shall be binding and irrevocable”.

3. On 7 November 2014, the Claimant lodged a claim in front of FIFA against the Respondent, arguing that the latter had failed to pay the total amount of USD 88,000 as stipulated in the employment contract, corresponding to eight monthly salaries. In this regard, the Claimant acknowledged that the Respondent only paid four monthly salaries in the total amount of USD 44,000.

4. Consequently, the Claimant requested from the Respondent the amount of USD 88,000 as outstanding salaries, plus interest at a rate of 5% per year as from 15 March 2014, “as this was the last date that a payment in relation to the salary was received” as well the legal costs.

5. In its reply to the claim, the Respondent argued that, in accordance with the employment contract, the Football Federation of Country D was competent to deal with the matter in “first instance” and that FIFA is only competent in “second instance”. Moreover, the Respondent claimed that the Claimant had the obligation to seek for an amicable solution in the matter before lodging a claim.

6. In continuation, the Respondent alleged having already paid the total amount of USD 55,000 to the Claimant. Furthermore, the Respondent was eager to emphasise that the end of the relevant football season was allegedly on 6 April 2014 and, therefore, argued that the Claimant was only entitled to receive salaries “for July 2013, January, February, mars 2014 and Only the equivalent of six (6) working days of April Salary 2014”.

7. Consequently, the Respondent deemed that the matter shall be declared inadmissible or, alternatively, that the Claimant is only entitled to receive the total amount of USD 46,200 and interest as from the date of “the decision of the claim”.

8. In his replica, the Claimant reiterated his position. In this respect, the Claimant argued that FIFA is not an appeal court and he was of the opinion that FIFA is competent to deal with the matter at hand. Furthermore, the Claimant requested interest at a rate of 5% per year as from the relevant due dates of the instalments.

9. In its last position in the matter at hand, the Respondent reiterated its allegations.

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 7 November 2014. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2014; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. At this stage, the Single Judge remarked that in its statements, the Respondent referred to the employment contract, which stipulated inter alia that any arising disputes between the parties shall “submit the matter to the Football Federation of Country D and FIFA governing bodies” and that “[D]ecisions issued in this case shall be binding and irrevocable” and, hence, argued that the matter at hand should be remitted to the Football Federation of Country D (hereinafter: the Football Federation E).

3. In this respect, and regardless of the fact that the relevant employment contract contains a reference to dispute resolution at national level, which reference, the Single Judge pointed out, was worded in a rather vague manner in the sense that it merely refers to the Football Federation E and not to a specific national deciding body, the Single Judge referred to the content of art. 22 b) of the Regulations on the Status and Transfer of Players as well as to the respective well-established jurisprudence of the Players’ Status Committee according to which, in general, in employment-related disputes between a club and a coach that have an international dimension, i.e. the parties do not belong to the same country, both parties were entitled to refer the dispute to FIFA’s deciding bodies, unless an independent arbitration tribunal respecting the principle of equal representation of coaches and clubs with an independent chairman has been established at national level.

4. The Single Judge acknowledged that in the case at hand the Respondent had failed to prove that an independent arbitration tribunal in compliance with the requirements of the FIFA regulations has been established in Country D.

5. Therefore, and considering that no clear and specific arbitration clause was included in the relevant employment contract as well as taking into account the Respondent’s failure to provide any evidence proving that an independent arbitration tribunal which would comply with the requirements of the FIFA regulations has been established, the Single Judge held that the Respondent’s objection to the competence of FIFA to deal with the present matter has to be rejected.

6. 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 4 in combination with art. 22 lit. c) of the 2016 edition of the Regulations on the Status and Transfer of Players, he is competent to deal with the matter at sake which concerns an employment-related dispute of an international dimension between a Coach of Country B and a club affiliated to the Football Federation of Country D.

7. Furthermore, 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 present claim was lodged with FIFA on 7 November 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 an unspecified date, the Claimant and the Respondent concluded an employment agreement (hereinafter: the contract) valid for 12 months from 1 July 2013 and which provided for the Claimant to receive from the Respondent the total amount of USD 132,000, payable in twelve monthly salaries of USD 11,000.

10. In continuation and on the one hand, the Single Judge acknowledged that, in his claim to FIFA, the Claimant had maintained that he was entitled to receive USD 88,000 from the Respondent, plus 5% interest per year as of the respective due dates, indicating that the latter had failed to pay such amount in accordance with the employment contract. The Single Judge further took note that the Claimant confirmed having received from the Respondent four monthly salaries in the amount of USD 44,000.

11. On the other hand, the Single Judge observed that, in its reply, the Respondent had invoked having already paid a total amount of USD 55,000. At this stage, the Single Judge referred to art. 12 par. 3 of the Procedural Rules according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof. Equally, the Single Judge recalled that, in accordance with art. 9 par. 1 lit. e) of the Procedural Rules, all documentation provided in the context of a dispute in front of FIFA should be presented in the original version and, if applicable, translated into one of the official FIFA languages (English, French, Spanish and German).

12. In this respect, the Single Judge turned his attention to the documentation on file, in particular, to the contents of the payment receipts submitted by the Respondent and pointed out that most of the payment receipts were not translated into one of the official FIFA languages and partially not legible. Moreover, the Single Judge analysed the relevant parts of the payment receipts in English and ruled that the Respondent failed to provide conclusive evidence that corroborated that he had paid more than USD 44,000 to the Claimant.

13. Furthermore, the Single Judge noted that the Respondent invoked that the relevant season ended on 6 April 2014 and, thus, deemed that the Claimant was only entitled to receive “half of April Salary”.

14. On account of the above, the Single Judge turned his attention to clause IV of the employment contract, which explicitly specified that the Claimant was entitled to receive the amount of USD 132,000 payable in twelve monthly salaries and did not foresee any reduction whatsoever.

15. With the abovementioned considerations in mind, and since the Respondent did not conclusively proof having paid more than the total amount of USD 44,000 to the Claimant, the Single Judge decided that, in accordance with the basic legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, the Respondent was liable to pay to the Claimant the amount of USD 88,000.

16. In continuation, taking into consideration the Claimant’s request, the Single Judge decided to award interest at a rate of 5% p.a. on the amount of USD 88,000 as from the respective due dates.

17. As a consequence of all the above, the Single Judge ruled that the claim of the Claimant is admissible, accepted and that the Respondent has to pay to the Claimant outstanding remuneration in the amount of USD 88,000 together with 5% interest per year on the relevant amount as from the respective due dates.

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, taking into account the degree of success, the Single Judge of the Players’ Status Committee ruled that the costs of the current proceedings which shall be borne by the Respondent.

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 below CHF 100,000, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 10,000.

21. In conclusion and in view of the specific legal complexities of the matter and considering that the case at hand was adjudicated by the Single Judge and not by the Players’ Status Committee in corpore the Single Judge determined the costs of the current proceedings to the amount of CHF 8,000 shall be borne by the Respondent.

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, within 30 days as from the date of notification of this decision, the total amount of USD 88,000 as outstanding salaries, plus interest as follows:

- 5% p.a. over the amount of USD 11,000 as from 1 December 2013 until the date of effective payment;

- 5% p.a. over the amount of USD 11,000 as from 1 January 2014 until the date of effective payment;

- 5% p.a. over the amount of USD 11,000 as from 1 February 2014 until the date of effective payment;

- 5% p.a. over the amount of USD 11,000 as from 1 March 2014 until the date of effective payment;

- 5% p.a. over the amount of USD 11,000 as from 1 April 2014 until the date of effective payment;

- 5% p.a. over the amount of USD 11,000 as from 1 May 2014 until the date of effective payment;

- 5% p.a. over the amount of USD 11,000 as from 1 June 2014 until the date of effective payment;

- 5% p.a. over the amount of USD 11,000 as from 1 July 2014 until the date of effective payment.

4. If the aforementioned sum, plus interest, are not paid within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

5. The final costs of the proceedings in the amount of CHF 8,000 are to be paid by the Respondent, Club C, within 30 days as from the date of notification of the present decision as follows:

5.1. The amount of CHF 6,000 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

5.2. The amount of CHF 2,000 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