F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – coach disputes / controversie allenatori (2018-2019) – fifa.com – atto non ufficiale – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland8 August 2018

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 8 August 2018,

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 club) concluded an employment contract (hereinafter: the Respondent), valid from 15 July 2016 until 30 May 2017, by means of which the coach was hired as goalkeeper coach.

2. In this respect, the parties agreed that the Claimant “is, or shortly will be formally employed and sponsored by the Ministry of Culture and Sport [hereinafter: the ministry] in accordance with the terms and conditions of an employment contract between the Coach [i.e. the Claimant] and the MOCS [i.e. the Ministry]. (..) the coach carries out his daily duties working for and with the Club directly, notwithstanding his employment and sponsorship by the MOCS”.

3. Furthermore art. IV 1. of the contract specifies that “the club [i.e. the Respondent] will not be liable to pay any sums to the coach in respect of his role at the Club as MOCS will be wholly responsible to remunerate the Coach in accordance with the MOCS contract. However for the avoidance of doubt, the remuneration due to the Coach by MOCS under the MOCS contract will be set forth in the Schedule to this Contract. In the case that MOCS fails to pay the Coach wholly or partially, or delays in any payment to him, the Club will have no liability whatsoever”.

4. In accordance with art. VIII 2 of the contract “in case of early termination without just cause or without mutual agreement, the Club or the Coach, 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 would have been entitled to be paid by the Club 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 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 also signed a document entitled “schedule” (hereinafter: the addendum), in which it was again specified that “as per Article IV (1) of the Contract, the Club will not be liable to pay any sums to the Coach in respect of his role at the Club as MOCS will be wholly responsible to remunerate the coach in accordance with the MOCS Contract”.

6. In accordance with the addendum, the Claimant was entitled to receive, as salary, the total amount of EUR 65,000 net “equivalent to 260.552.5 in the currency of Country D” as follows:

- “€ 6,500 (..) Equivalent to 26.055.25 in the currency of Country D (..) per month, from 31 July 2016 to 30 May 2017, (10 months) to be paid as follows:

a) € 6,373 (..) to be paid by currency of Country D Equivalent 25.547 in the currency of Country D (..) to be paid from MOCS [i.e. the Ministry] each month

b) €127 net (..) to be paid by currency of Country D Equivalent 509.00 in the currency of Country D (..) to be paid from the Club per each month .”

7. On 16 November 2016, the Respondent, the Claimant, Mr E as head coach (hereinafter: Mr E), Mr F as assistant coach (hereinafter: Mr F) and Mr G (hereinafter: Mr G) as physical fitness coach, concluded a settlement agreement (hereinafter: the settlement agreement) by means of which the Respondent undertook to pay to the bank account of Mr E, by 16 December 2016, the total amount of EUR 895,000 for the coach, Mr E, Mr F and Mr G. The settlement agreement did not include a breakdown of the total amount of EUR 895,000 payable to Mr E.

8. As specified in the settlement agreement, the Respondent had terminated the contracts of the entire coaching team on 31 October 2016.

9. In addition, clause 6 of the settlement agreement (hereinafter: clause 6) stated that in case of non-payment by the Respondent of the relevant amount by 16 December 2016 “this agreement will be cancelled immediately”.

10. Finally, it is mentioned in clause 7 of the settlement agreement that “this agreement replaces the previous payment agreement signed between the parties on 31/10/2016”.

11. On 25 April 2017, the Claimant lodged a claim with FIFA against the Respondent on the basis of the contract and requested from the latter the payment of the total amount of EUR 65,000, plus 5% interest p.a. as from 31 October 2016. In addition, the Claimant requested to be reimbursed of all costs incurred.

12. In this respect, the Claimant alleged that the Respondent had failed to pay the amount of EUR 895,000 as per the settlement agreement and argued that, therefore, in accordance with clause 6, the document in question had become null and void. Hence, from the Claimant’s point of view, the contract had resumed its validity.

13. In continuation, the Claimant accused the Respondent of having terminated its contractual relationship with the entire coaching team on 31 October 2016 without just cause and explained that, by means of the settlement agreement, the latter had then agreed to pay the relevant due amounts to the parties concerned.

14. In view of all the aforementioned, the Claimant deemed being entitled to claim from the Respondent the sum of EUR 19,500, corresponding to his first three salaries under the contract which had allegedly remained unpaid (i.e. EUR 6,500 x 3), as well as the amount of EUR 45,500, corresponding to the remaining value of the contract as compensation for breach of contract (i.e. EUR 6,500 x 7).

15. In addition, the Claimant pointed out that, in accordance with Swiss law, despite the content of the contract, the Respondent was the one responsible for the payment of his salary and not the ministry, as the contract had been concluded between him and the Respondent and he had been working for the latter.

16. Equally, the Claimant recalled that, as per the settlement agreement, the Respondent had undertaken to pay all due amounts to the coaching team.

17. Finally, the Claimant emphasized that no agreement was ever concluded between him and the ministry.

18. As evidence of his allegations, the Claimant inter alia provided FIFA with the statement of Mr F and of Mr G.

19. In its response on 28 May 2018, the Respondent rejected the claim of the Claimant in its entirety.

20. In this respect, the Respondent contested the competence of FIFA to decide on the matter at stake arguing that it was “crystal clear that the employment relationship arising out of the employment contract was between the Claimant and the MOCS, being the club a mere subsidiary where the Respondent would work at.”

21. Hence, from the Respondent’s point of view, “MOCS, being a governmental body of the Country D (..) does not have a stand to be sued in accordance with the Procedure Rules [of FIFA] and it is not considered a member of FIFA. (..) so it cannot participate in any FIFA proceedings.”

22. Nevertheless and with regard to the settlement agreement, the Respondent clarified having agreed to insert “in the compensation to be paid to Mr E, a small compensation to the Staff (..) as it has subsidiary responsibility regarding some payments to the Coach”. At the same time, the Respondent contested the allegation that by means of the settlement agreement it would have agreed to pay “the total amount owed by the Coaching staff (..) as Mr E (..) has a salary of USD 1,060,000, so clearly the settlement agreement did not cover all the debts to the entire staff”.

23. As further alleged by the Respondent “the fact that the settlement agreement is poorly drafted by the parties does not deviate from the real scenario, that is Mr E was employed by the Club and his Staff was employed by the MOCS, where subsidiary payments were to be made by the Club”.

24. In continuation and “in the unlikely scenario that FIFA declares itself competent to analyse the present proceedings”, the Respondent deemed that the “responsibility of the Club and the MOCS must be separated from one another” whereas “the employment contract is between [the Claimant] and the MOCS, and the responsibility to pay the coach remained with the MOCS, but, (..) a subsidiary remuneration was to be paid by the Club, i.e., €127 per month”.

25. As a result, from the Respondent’s point of view “it will only be possible to hear the responsibility of the club (..) towards the coach, which for the entire season corresponds to the amount of EUR 1,270, such amount to be paid in a possible compensation to be ordered by the PSC”.

26. Finally, the Claimant informed FIFA that he remained unemployed from October 2016 until 3 May 2017, when he signed a new employment contract with the club of Country B, Club H, valid from the date of signature until 31 December 2017, for a monthly salary of 30,000 in the currency of Country B (approx. EUR 962 on 3 May 2017).

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 2017 and 2018). Consequently, and since the present matter was submitted to FIFA on 25 April 2017, 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. 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 2018 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 has an international dimension.

3. As a consequence and contrary to the Respondent’s objection in this regard, the Single Judge is the competent body to decide on the present litigation involving a coach of Country B and a club of Country D regarding an alleged employment relationship between the two aforementioned parties.

4. 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 2016 and 2018 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 25 April 2017. In view of the foregoing, the Single Judge concluded that 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 (cf. art. 26 par. 1 and 2 of the Regulations).

5. 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. The Single Judge, however, emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand.

6. In doing so and first of all, the Single Judge noted that the Claimant and the Respondent had concluded an employment contract, which was originally valid from 15 July 2016 until 30 May 2017, and by means of which the Claimant was hired as goalkeeper coach. Furthermore, the Single Judge took note of the fact that, in accordance with the contract, the Claimant was to perform “his daily duties working for and with the club directly”, while his salary was to be paid by the Ministry of Culture and Sport. In addition, the Single Judge also remarked that, as specified in an additional document signed by the parties and entitled “schedule”, the monthly salary of the Claimant amounted to a total of EUR 65,000 and was to be paid as follows: EUR 6,373 by the ministry and EUR 127 by the Respondent.

7. The Single Judge further realized that, art. VIII 2 of the contract included the following provision: “in case of early termination without just cause or without mutual agreement, the Club or the Coach, 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 would have been entitled to be paid by the Club 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 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”.

8. Equally, the Single Judge noticed that, on 16 November 2016, the Respondent had concluded a settlement agreement with the Claimant, Mr E and the rest of the coaching staff, by means of which the Respondent undertook to pay to Mr E the amount of EUR 895,000 in relation to the early termination of the contract of the entire coaching staff on 31 October 2016. The aforementioned amount of compensation was indiscriminately due to the entire coaching staff. In the same context, the Single Judge acknowledged that, as per the same document, in case of non-payment by 16 December 2016, the settlement agreement would be considered as immediately cancelled.

9. In continuation, the Single Judge took note of the fact that, in his claim to FIFA, the Claimant had inter alia requested from the Respondent the payment of the total amount of EUR 65,000, corresponding to outstanding remuneration and compensation for breach of contract, arguing that, before terminating the contract without just cause on 31 October 2016, the Respondent had also failed to pay him three monthly salaries.

10. The Single Judge further remarked that, for its part, the Respondent, although not contesting having terminated the contract, had rejected the claim of the Claimant arguing inter alia that he had been hired by the ministry and that the ministry had been the one in charge of paying his salary.

11. In view of all of the aforementioned and in particular considering the Respondent’s allegations as to its lack of contractual obligations towards the Claimant, the Single Judge deemed that the first question that had to be addressed in the present dispute was whether the Respondent indeed had any contractual obligations towards the Claimant.

12. Bearing in mind the aforementioned and considering the content of the documentation on file, i.e. the contract and the schedule, as well as the fact that the Respondent had never contested having signed both documents, that the contract stipulated that “the coach carries out his daily duties working for and with the Club directly” and that the schedule established that “€127 net [were] to be paid by currency of Country D Equivalent 509.00 in the currency of Country D (..) to be paid [to the Claimant] from the Club per each month“, the Single Judge came to the conclusion that not only the Claimant had an employment relationship with the Respondent, but also that the latter bore (a small) part of the obligation to pay the Claimant’s remuneration.

13. In addition, the Single Judge also pointed out that the settlement agreement, concluded between the club and the entire coaching staff on 16 November 2016, clearly mentioned that the Respondent had terminated the contracts of the coaching team on 31 October 2016 and, therefore, undertook to pay to them a certain amount of compensation.

14. Having determined the aforementioned, the Single Judge reasoned that the second question that had to be addressed in casu was whether the contractual relationship between the parties had been terminated with or without just cause by the Respondent on 31 October 2016.

15. In this regard, the Single Judge recalled that the Respondent had never contested having dismissed the Claimant – as well as the entire coaching staff – on 31 October 2016 and had never provided FIFA with an explanation as to the reasons behind such termination of contract. Furthermore, the Single Judge pointed out that the Respondent also never contested the content of the settlement agreement, in which it was inter alia indicated that it had terminated the contracts of its entire coaching staff on 31 October 2016 and consequently undertook to pay them a relevant amount of compensation.

16. The Single Judge also noted that clause 6 of the settlement agreement stated that in case of non-payment by the Respondent of the relevant amount by 16 December 2016 “this agreement will be cancelled immediately”. Furthermore, he also noted that it remained uncontested by the Respondent that the amount stipulated in the settlement agreement remained unpaid and that, as per the employment contract and its schedule, his first three salaries also remained outstanding.

17. Considering all of the aforementioned the Single Judge concluded that, even though the settlement agreement is to be considered as cancelled, the Respondent had uncontestably terminated its contractual relationship with the Claimant inter alia on 31 October 2016, and no justification whatsoever for such has been provided. Therefore, the Single Judge considered that the contract was terminated by the Respondent on 31 October 2016 without just cause.

18. After having established the aforementioned, the Single Judge went on analysing the consequences of the breach of contract without just cause committed by the Respondent.

19. But before doing so, the Single Judge decided that he had to assess whether any outstanding remuneration was still due by the Respondent to the Claimant at the moment their contractual relationship was terminated without just cause by the Respondent. In this regard, the Single Judge underlined that the Claimant had inter alia requested from the Respondent the payment of the amount of USD 19,500 arguing that he had not yet received his first three salaries due as per the contract in connection with the schedule. In addition, the Single Judge recalled that the Respondent did not contest that such salaries had remained unpaid, but alleged that their payment was the sole responsibility of the ministry; if at all, only the sum of EUR 1,270 would be payable to the Claimant by the Respondent, as the schedule only provided for EUR 127 per month to be paid by the Respondent whereas the ministry had to pay the rest of the Claimant’s salary.

20. With the aforementioned considerations in mind, the Single Judge was first of all eager to emphasize that, in fact, the schedule unambiguously established that out of the EUR 6,500 due to the coach as monthly salary, the sum of EUR 127 was to be paid by the Respondent. At this point, the Single Judge deemed it necessary to remind the parties of the wording of art. 6 par. 1 of the Procedural Rules, according to which, “Parties are member associations of FIFA, clubs, players, coaches or licensed match agents”, and consequently, he is only in a position to rule on the contractual obligations between the club and the coach, which were clearly identified in the schedule to the contract.

21. In view of all the aforementioned, considering the allegations and the specific request of the Claimant as well as the content of the contract and, in particular, of the schedule with regard to the Claimant’s monthly remuneration, bearing in mind that the Respondent had not contested having failed to pay three times the sum of EUR 127 to the Claimant and taking into account the legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, the Single Judge established that in order to fulfil its contractual obligations, the Respondent must pay to the Claimant the amount of EUR 381, corresponding to his salaries for August, September and October 2016, which fell under the responsibility of the Respondent.

22. Additionally and with regard to the Claimant’s request for interest, the Single Judge, in accordance with his well-established jurisprudence, decided that the Respondent has to pay to the Claimant 5% interest p.a. on the amount of EUR 381 as follows: 5% p.a. over the amount of EUR 254 from 31 October 2016 until the date of effective payment and over the amount of EUR 127 from 1 November 2016 until the date of effective payment.

23. Having established the aforementioned and turning his attention to the compensation payable to the Claimant by the Respondent following the termination without just cause of their contractual relationship by the latter, the Single Judge reverted to the content of art. VIII 2 of the contract and recalled that the provision in question granted both parties the payment of the residual amount of the Claimant’s salary as compensation in case of early termination without just cause by either party. As a result and considering that the provision in question was considered as proportionate and reciprocal, the Single Judge determined that, in accordance with his well-established jurisprudence, the amount of compensation due to the Claimant by the Respondent had to be assessed in accordance with the relevant clause, which had been contractually agreed upon between them.

24. As a result and considering that the Respondent had dismissed the Claimant on 31 October 2016 and that the contract was valid until 30 May 2017, the Single Judge calculated that the compensation due to the Claimant by the Respondent as per of art. VIII 2 of the contract amounted to 7 monthly salaries in the amount of EUR 127 each, as stipulated in the addendum. As a result, the Single Judge established that the Respondent had to pay to the Claimant the total amount of EUR 889 as compensation for breach of contract.

25. Equally and with regard to the Claimant’s request for interest, the Single Judge, in accordance with his well-established jurisprudence, decided that the Respondent has to pay to the Claimant 5% interest p.a. on the amount of EUR 889 as from 25 April 2017, i.e. the day on which the present claim was lodged, until the date of effective payment.

26. In view of all the aforementioned, the Single Judge concluded that the claim of the Claimant is partially accepted and that the Respondent has to make the followings payments to the Claimant:

- outstanding remuneration in the amount of EUR 381, plus 5% interest p.a. over the amount of EUR 254 from 31 October 2016 until the date of effective payment and 5% p.a. over the amount of EUR 127 from 1 November 2016 until the date of effective payment;

- compensation for breach of contract in the amount of EUR 889, plus 5% interest p.a. on said amount as from 25 April 2017 until the date of effective payment.

27. 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, including 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 (cf. art. 18 par. 1 of the Procedural Rules).

28. In this respect, the Single Judge reiterated that the claim of the Claimant is only partially accepted and that the Respondent is the party at fault. Therefore, the Single Judge decided that the Claimant and the Respondent both have to bear the costs of the current proceedings in front of FIFA.

29. 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 50,000 but lower than CHF 100,000, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 10,000.

30. In conclusion, and considering that the case at hand was adjudicated by the Single Judge and not by the Players’ Status Committee in corpore and that that it did not pose any particular legal or factual difficulty, the Single Judge determined the costs of the current proceedings to the amount of CHF 7,000.

31. Consequently, the Claimant has to pay the amount of CHF 4,000 and the Respondent the amount of CHF 3,000 in order 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 partially accepted.

3. The Respondent, Club C, has to pay to the Claimant, Coach A, within 30 days as from the date of notification of the present decision, outstanding remuneration in the amount of EUR 381, plus 5% interest p.a. as follows:

a) 5% p.a. over the amount of EUR 254 from 31 October 2016 until the date of effective payment;

b) 5% p.a. over the amount of EUR 127 from 1 November 2016 until the date of effective payment.

4. The Respondent, Club C, has to pay to the Claimant, Coach A, within 30 days as from the date of notification of the present decision, compensation for breach of contract in the amount of EUR 889, plus 5% interest p.a. on said amount from 25 April 2017 until the date of effective payment.

5. If the aforementioned sums, plus interest as established above, 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 other claims lodged by the Claimant, Coach A, are rejected.

7. The final costs of the proceedings in the amount of CHF 7,000 are to be paid by both parties, within 30 days as from the date of notification of the present decision, as follows:

7.1. The amount of CHF 4,000 has to be paid by the Claimant, Coach A. Considering that the latter already paid an advance of costs in the amount of CHF 2,000 at the start of the present proceedings, the Claimant, Coach A, has to pay the remaining amount of CHF 2,000.

7.2. The amount of CHF 3,000 has to be paid by the Respondent, Club C.

7.3. Both amounts have to be paid directly 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

8. The Claimant, Coach A, is directed to inform the Respondent, Club C, immediately and directly of the account number to which the remittances under point 3. and 4.

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

Omar Ongaro

Football Regulatory Director