F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – coach disputes / controversie allenatori (2019-2020) – fifa.com – atto non ufficiale – Decision 27 March 2020

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 27 March 2020,

by

Vitus Derungs (Switzerland)

Single Judge of the Players’ Status Committee,

on the claim presented by the coach

Manuel Antonio Suarez, Chile,

represented by Ms Maite Nadal and Mr Rodrigo Garcia

as “Claimant”

against the

Saudi Arabian Football Federation

as “Respondent”

regarding a contractual dispute arisen between the parties.

I. Facts of the case

1. On 14 December 2017, the coach Manuel Antonio Suarez (hereinafter: “the coach” or “the Claimant”) entered into an employment contract (hereinafter: “the contract”) with the Saudi Arabian Football Federation (hereinafter: “the SAFF” or “the Respondent”) valid from 14 December 2017 until 15 July 2018.

2. According to the contract, the Claimant was hired by SAFF as assistant coach and he was entitled to receive a monthly salary in the net amount of USD 42,857.

3. Art. 3.5 of the contract provided: “The priority of renewal and extension of this agreement returning to the SAFF only for a new period ends with the end of the AFC Asian Cup 2019 (from Jan 5th to Feb 1st 2019). In the event that the SAFF informed the Head Coach of the renewal/extension before 10 July 2018, the agreement shall be deemed to be extended for the agreed period until 1 February 2019 and the total amount of salaries will be as stated in the event of renewal/extension of the basic agreement (THE PROFESSIONAL FOOTBALL COACH AGREEMENT signed in 14th Dec 2017)”.

4. Art. 9 of the contract provided: “9.3 In the event that the SAFF breach, disrupts any of agreement clauses or terminated the agreement during the Term, the SAFF will pay the full remaining amount of the agreement to the employee, this penalty not demanded from the SAFF if the cause of breach or disruption of the agreement is due to the Head Coach´s decision to cease or dismiss the employee in his duties or if it is the cause of force majeure

9.4 (As stated in article 3.5) In the event that the employee breach, disrupts any of renewed/extended agreement clauses or terminated the agreement during the Term, the employee will pay the full remaining amount of the agreement to the SAFF immediately, this penalty not demanded from the employee if the cause of breach or disruption of the agreement is due to the Head Coach´s decision to cease or dismiss the employee in his duties or if it is the cause of force majeure.

9.5 (As stated in article 3.5) In the event that the SAFF breach, disrupts any of renewed/extended agreement clauses or terminated the agreement during the Term, the SAFF will pay the full remaining amount of the agreement to the employee, this penalty not demanded from the SAFF if the cause of breach or disruption of the agreement is due to the Head Coach´s decision to cease or dismiss the employee in his duties or if it is the cause of force majeure”.

5. On 17 August 2018, the Head Coach, Mr Juan Antonio Pizzi, informed the Claimant (via WhatsApp) that he [the Claimant] was dismissed by order of the minister and that this decision could not be modified. The original version of the message stated: “…Tengo malas noticias. Te tengo que sacar del staff. He intentado por todos los medios que consideren mis explicaciones, pero es una orden del ministro que no me dejan modificar y que condiciona mi continuidad…”.

6. On 23 May 2019, the Claimant lodged a complaint against the Respondent in front of FIFA for an alleged breach of the contract requesting the following:

1) to order the Respondent to pay the amount of USD 299,999 (USD 42,857 x 7) plus 5% interest p.a. until the date of effective payment;

2) to order the Respondent to pay procedural compensation related to the Claimant’s attorney fees and other expenses which are initially estimated in EUR 20,000.

7. According to the Claimant, the art. 3.5 of the contract was executed and hence the employment relationship with the Respondent remained in force until 1 February 2019, i.e. until the end of the AFC Asian Cup 2019.

8. In particular, the Claimant stated that his dismissal was a decision taken exclusively by the SAFF without any kind of involvement of the Head Coach (Mr Pizzi).

9. Furthermore, the Claimant remarked that he did not receive any further explanation nor written notice from the Respondent. As a result, the Claimant deemed that the Respondent unilaterally breached the contract without just cause, causing him an unmerited damage.

10. Moreover, the Claimant claimed that his contractual obligations were to provide his services as assistant coach until 1 February 2019. However, the Respondent breached the employment contract by terminating it without just cause and consequently has not fulfilled its economic obligations clearly provided in the contract.

11. With respect to the compensation for breach of contract, the Claimant argued that given that the Respondent terminated the contract without just cause, the Claimant requested the Respondent to pay compensation in accordance with art. 9 of the contract, namely the residual value of the contract amounting to USD 299,999 plus interest.

12. In addition, the Claimant stated having sent two warnings, on 15 September and 5 December 2018, to the Respondent requesting the latter to pay the total amount of USD 299,999 net plus interest. Nevertheless, the Respondent has not made any payment to the Claimant.

13. After the expiry of the deadline given to the Respondent to present its position, the latter stated that the premises of the current case are erroneous since the Respondent has never requested the dismissal of the Claimant. On the contrary, after the FIFA World Cup 2018 in Russia, the Respondent only asked the Head Coach to enhance his staff, without however ordering nor requesting the dismissal of anyone.

14. Moreover, the Respondent stated that on 7 December 2018 it replied to the Claimant’s letter dated 15 September 2018 and informed the latter that his dismissal was ascribable exclusively to the Head Coach’s decision.

15. In addition, the Respondent stressed that it can be seen in the WhatsApp conversation between the head and the assistant coach that they had a disagreement on a different distribution of what was the remuneration agreed previously. Mr Pizzi expressly admitted that he had a different interpretation of the things, without presenting any explanation of the events, but simply stating that “due to higher instructions” he had to dismiss his assistant.

16. Finally, the Respondent emphasised that it would be totally incomprehensible to act of dismissing exclusively one assistant without any specific reason.

17. In light of the foregoing, the Respondent considers that the evidence exhibited by the Claimant in support of his request appear certainly questionable and the request for an amicable solution is pointless since the Respondent has no overdue payables towards him.

II. Considerations of the Single Judge of the Players’ Status Committee

1. First of all, the Single Judge of the Player’s Status Committee (hereinafter: “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 23 May 2019. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2018; hereinafter: “the Procedural Rules”) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the Single Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, the Single Judge concluded that in accordance with art. 26 par. 1 and par. 2 of the March 2020 edition of the Regulations on the Status and Transfer of Players, and considering that the present claim was lodged on 23 May 2019, the June 2018 edition of said regulations (hereinafter: ”the Regulations”) is applicable to the matter at hand as to the substance.

3. Furthermore, the Single Judge confirmed that, based on art. 3 par. 1 and 2 of the Procedural Rules in connection with art. 23 par. 1 and 4 as well as art. 22 lit. c) of the Regulations, he was competent to deal with the present matter since it concerns a dispute between a Chilean coach and the Saudi Arabian Football Federation.

4. The competence of the Single Judge and the applicable regulations having been established, the Single Judge entered into the substance of the matter. In this respect, the Single Judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Single Judge 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.

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

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

7. In doing so and to begin with, the Single Judge took note that on 14 December 2017 the Claimant and the Respondent concluded the contract valid until 15 July 2018.

8. Moreover, the Single Judge took note that the contract contained the art. 3.5, which granted the possibility to extend the validity of the contract until the end of the AFC Asian Cup 2019, i.e. 1 February 2019.

9. The Single Judge further noted that on 17 August 2018, the Head Coach informed the Claimant via “WhatsApp” that his contract with the Respondent was terminated by the Saudi Arabian Ministry. From the same communication, the Single Judge acknowledged that the Head Coach was rendering his services to the Respondent.

10. At this stage, the Single Judge observed that the Claimant lodged the present claim in front of FIFA requesting from the Respondent, inter alia, compensation for the breach of the extended employment contract.

11. The Single Judge deemed that the first question to be addressed in the matter at stake, was whether or not the validity of the contract between the Claimant and the Respondent was extended until 1 February 2019 (cf. art. 3.5 of the contract).

12. In this respect, the Single Judge emphasised that said article clearly established that “in the event that the SAFF informed the Head Coach of the renewal/extension before 10 July 2018”, the contract with the assistant coach, i.e. the Claimant shall be deemed extended until 1 February 2019.

13. In this context, the Single Judge pointed out that the communication sent by the Head Coach to the Claimant on 17 August 2018 took place one month and 8 days after the time limit provided by the contract to extend it, i.e. 10 July 2018. Therefore, the Single Judge concluded that the contract between the Respondent and the Head Coach was extended.

14. What is more, the Single Judge remarked that the Respondent in its communication sent to FIFA outside the time limit granted by the FIFA administration, admitted not having dismissed the Claimant arguing that it was a decision of the Head Coach.

15. In light of all the above, the Single Judge came to the conclusion that since the contractual relationship between the Respondent and the Head Coach was extended until 1 February 2019, the contract between the Claimant and the Respondent followed the same path and it was also extended until said date, in accordance with art. 3.5 of the contract.

16. In continuation, the Single Judge observed that the Claimant did not receive any explanation nor written notice from the Respondent regarding the termination of his contract. In this regard, the Single Judge pointed out that from the Respondent´s behaviour, it was clear that it was no longer interested in the services of the Claimant.

17. In view of all the above, the Single Judge concluded that on 17 August 2018, date in which the Head Coach communicated the dismissal, the Respondent terminated the contract with the Claimant without just cause and that the Claimant was thus entitled to compensation for the early termination.

18. Bearing in mind the previous considerations, the Single Judge went on to deal with the potential financial consequences of the early termination of the employment contract without just cause by the Respondent.

19. In this respect and to begin with, the Single Judge recalled that at the time of the termination of the contract it remained undisputed that the salary of July 2018 remained outstanding.

20. What is more, the Single Judge emphasised that, in accordance with the general principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, the Respondent must fulfil the obligations it voluntarily entered into with the Claimant by means of the contract signed between the parties.

21. In view of the foregoing, the Single Judge concluded that the Respondent owed to the Claimant an amount of USD 42,857 as outstanding remuneration corresponding to the month of July 2018.

22. In addition, the Single Judge took note that the Claimant had requested a 5% annual interest over the relevant monthly salary. As a consequence, the Single Judge deemed appropriate to grant interest at a rate of 5% per annum over the amount of USD 42,857 as from 23 May 2019 until the date of effective payment.

23. Turning his attention to the compensation payable for the unilateral termination of the contract without just cause by the Respondent, the Single Judge observed that the parties did establish a specific contractual provision regarding the possibility to prematurely terminate the contract. In this respect, the Single Judge referred to the content of the art. 9.5 of the contract which stated that “… 9.5 (As stated in article 3.5) In the event that the SAFF breach, disrupts any of renewed/extended agreement clauses or terminated the agreement during the Term, the SAFF will pay the full remaining amount of the agreement to the employee…”.

24. The Single Judge pointed out that since the amount of compensation was contractually agreed by the parties, said amount should therefore be awarded to the Claimant as per art. 9.5 of the contract which expressly provided for an amount equivalent to the remaining value of the contract.

25. Consequently, and taking into account that the contract was valid until 1 February 2019, the Single Judge decided that the Claimant was entitled to his salary for the period from 1 August 2018 until 1 February 2019, as compensation for the unilateral termination of the contract without just cause by the Respondent.

26. Therefore, the Single Judge decided that the Claimant was entitled to receive from the Respondent the total amount of USD 257,142, i.e. 6 monthly salaries, as compensation for breach of contract.

27. Moreover, the Single Judge took note that the Claimant had requested interest over the damage compensation. In this regard, the Single Judge decided to grant interest at a rate of 5% per year over the relevant compensation amounting to USD 257,142 as from the date in which the Claimant lodged the present claim at FIFA, i.e. 23 May 2019.

28. Furthermore and with regard to the Claimant’s request for legal costs, the Single Judge decided to reject such request is not granted in proceedings before the Players’ Status Committee in accordance with article 18 par. 4 of the Procedural Rules.

29. In view of all the above-mentioned considerations, the Single Judge decided that the claim of the Claimant is partially accepted and that the Respondent has to pay to the Claimant the amount of USD 42,857 as outstanding salary, as well as the amount of USD 257,142 as compensation for breach of contract plus the respective interest.

30. 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 and are normally to be paid by the unsuccessful party.

31. In this regard, the Single Judge underlined that taking into the particularities of the case, the Single Judge concluded that the Respondent has to bear the costs of the current proceedings before FIFA.

32. According to Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute. The amount in dispute to be taken into consideration in the present proceedings is above CHF 200,001. Therefore, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

33. In view of the specific circumstances of the present matter, the Single Judge determined the costs of the current proceeding to the amount of CHF 20,000.

34. In conclusion, the Single Judge decided that the Respondent has to pay the amount of CHF 15,000 to FIFA and the amount of CHF 5,000 to the Claimant in order to cover the costs of the present proceedings.

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

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

1. The claim of the Claimant, Manuel Antonio Suarez, is partially accepted.

2. The Respondent, Saudi Arabian Football Federation, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 42,857 plus 5% interest p.a. as from 23 May 2019 until the date of effective payment.

3. The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of USD 257,142 plus 5% interest p.a. as from 23 May 2019 until the date of effective payment.

4. Any further claim lodged by the Claimant is rejected.

5. If the aforementioned amounts plus interest are not paid within the aforementioned deadline, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

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

6.1 the amount of CHF 5,000 has to be paid to the Claimant and

6.2 the amount of CHF 15,000 has to be paid to FIFA to the following bank account with reference to case no. 19-01124/mdo:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

7. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances under points 2., 3 and 6.1 above are to be made and to notify the Players’ Status Committee of every payment received.

*****

Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note relating to the appeal procedure:

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. 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 (CAS)

Avenue de Beaumont 2

CH-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

Emilio García Silvero

Chief Legal & Compliance Officer