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 15 April 2020

Decision of the Single Judge of the Players’ Status Committee

passed on 15 April 2020,

by

Johan Van Gaalen (South Africa),

Single Judge of the Players’ Status Committee,

on the claim presented by the coach

Gordon Petric, Serbia/England,

represented by Mr Mico Petkovic

as Claimant

against the,

AE Larissa, Greece

as Respondent

regarding an employment-related contractual dispute

arisen between the parties

I. Facts of the case

1. On 1 July 2019, the English-Serbian coach, Gordon Petric (hereinafter: the Coach or the Claimant) concluded an employment contract (hereinafter: the contract) with the Greek club, AE Larissa (hereinafter: club or the Respondent) valid as from 1 July 2019 until 30 June 2020.

2. Art. 4. 5 of the contract read as follows:

“4. The Club is obligated to pay the Coach for his services:

A) from 1/1/2019 until 30/6/2020 a fee of 36.700,00€ net of tax euros paid out to the Coach .

Fee analysis

1. 1.250,00€ monthly net salary,(1.500,00€ gross salary including social security contributions, 1.250,00€ X 14 = 17 .500,00€),

2. 19 .200,00€ net of taxes fees for services, upon with relevant taxes will be calculated ( all taxes will be paid by the club) in 12 instalments of 1.600,00 and

A) from 1/1/2020 until 30/6/2021 a fee of 36.700,00€ net of tax euros paid out to the Coach .

Fee analysis

3. 1.250,00€ monthly net salary,(1.500,00€ gross salary including social security contributions, 1.250,00€ X 14 = 17 .500,00€),

4. 19 .200,00€ net of taxes fees for services, upon with relevant taxes will be calculated ( all taxes will be paid by the club) in 12 instalments of 1.600,00.

Money deposit shall be proved only by deposit to the Coach's bank account.

5. All above mentioned fees will be deposited after withholding the Coach's social security contributions and taxes. Any form of withholding or obligations towards third parties (subscriptions, issue of the Coach's ID etc) shall be covered by the Club, even if they are being charged to him, with the exclusion of the Coaches' Association".

3. On 1 July 2019, the coach concluded an “additional football coach contract” (hereinafter: the additional contract) with the club, valid as from 1 July 2019 until 30 June 2021.

4. Clause 3 of the additional contract stipulates the following:

“3. The Club is obligated to pay the Coach for his services:

A) from 1/7/2019 until 30/6/2020 a fee of 35.400,00€ net of tax euros paid out to the Coach in 12 installments of 2.950,00€ every month.

B) from 1/7/2020 until 30/6/2021 a fee of 35.400,00€ net of tax euros paid out to the Coach in 12 installments of 2.950,00€ every month.

Money deposit shall be proved only or by deposit to the Coach's bank account.

For all periods from 1/7/2019 until 30/6/2021 and in case of a renewal of the contract the following bonuses apply:

1. For winning the national cup bonus 20.000,00€ net,

2. If the club achieves to play to UEF A competitions ( qualifying rounds) bonus 20.000,00€ net,

All bonuses are NET of taxes and should be paid no later than 31st of December of each year.

The club should provide to the coach for the whole duration of his employment an apartment and a small city car”.

5. On 28 August 2019, the coach sent the club a letter, by means of which he stated that on 8 August 2019, after a meeting between the coach and the club’s representatives, the contract was orally terminated by the club and the coach was told that he no longer needed to attend the training sessions. In spite of the foregoing, the coach attended the afternoon session, to which he was advised to leave. The coach further states that a few hours later in the same afternoon the club falsely announced a mutually agreed termination of the contract on its website. The coach refused the alleged termination and requests to be authorized to perform the contract. Furthermore, he reminded the club of the existence of outstanding remuneration in the total amount of EUR 17,716.66 (EUR 11,815.66 from the employment contract and EUR 5,900 from the additional contract) and requested its payment until 12 September 2019. In case of non-payment, the coach claims that he would terminate the contract and the additional contract with just cause.

6. On 12 September 2019, the club replied to the coach’s letter, stating that the contract had been mutually terminated on 7 August 2019. The club accepts to pay the coach the total amount of EUR 15,000, allegedly equivalent to the remuneration due for work performed, but refuses to pay the amount of EUR 35,000, allegedly requested by the coach in order to accept the termination of the contract.

7. On 13 September 2019, the coach terminated the contract unilaterally, based on the fact that the club did not make any payments within the deadline granted in his letter of 28 August 2019.

8. On 17 October 2019, the coach lodged a claim against the club, requesting the payment of the following amounts:

- EUR 14,113.32 as outstanding remuneration due until 13 September 2019, plus interest at the rate of 5% p.a. until the date of effective payment as from 13 September 2019, detailed as follows:

- EUR 134,636.68 as compensation for breach of contract plus interest at the rate of 5% p.a. until the date of effective payment as from 17 October 2019 as per the following breakdown:

- Procedural costs and attorney fees.

9. In his claim, the coach held that he always complied with his contractual obligations and therefore the club breached the contract without just cause, by orally trying to terminate the contract, preventing him from performing his activities and falsely announcing on its website that the parties had agreed upon a mutual termination. Thus, he claims to be entitled to outstanding remuneration as well as compensation for breach of contract.

10. The coach deemed that according to the contract and to the additional contract, he was entitled to receive from the club the net amount of EUR 5,800 per month, consisting of EUR 1,250 as net salary plus EUR 1,600 of fees for services as per the contract and EUR 2,950 as monthly fee as per the additional contract.

11. Despite having been invited to do so, the club failed to reply to the claim.

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) analyzed whether he was competent to deal with the matter at hand. In this respect, considering that the claim was lodged on 17 October 2019, he took note that, according to art. 21 of the November 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution (hereinafter: the Procedural Rules), the 2018 edition of the Procedural Rules is applicable to the matter at stake.

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 Regulations on the Status and Transfer of Players, he is competent to deal with the matter at stake, which concerns an employment-related disputes between a coach and a club of an international dimension.

3. Furthermore, the Single Judge analyzed 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 Regulations on the Status and Transfer of Players (edition March 2020), and on the other hand, to the fact that the present claim was lodged with FIFA on 17 October 2019. In view of the foregoing, the Single Judge concluded that the October 2019 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).

4. The competence of the Single Judge and the applicable regulations having been established, and entering into the substance of the matter, the Single Judge started by acknowledging the above-mentioned facts as well as the documentation contained in the file. However, the Single Judge emphasized that, in the following considerations, he will refer only to the facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.

5. In this respect, the Single Judge noted that the parties concluded a contract valid as from 1 July 2019 until 30 June 2021.

6. Subsequently, the Single Judge observed that the coach lodged a claim against the club, arguing that, on 13 September 2019, he terminated the contract with just cause, after having previously put the club in default.

7. The club, for its part, failed to present its response to the claim of the coach, in spite of having been invited to do so. In this way, the Single judge considered that the Respondent renounced its right of defence and, thus, accepted the allegations of the Claimant.

8. Furthermore, as a consequence of the aforementioned consideration, the Single judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules it shall take a decision upon the basis of the documents already on file, in other words, upon the statements and documents presented by the Claimant.

9. Having said that, the Single judge highlighted that it remained uncontested that the Respondent had not fulfilled its financial obligations set forth in the contract and the additional contract signed between the parties and that it failed to pay to the Claimant the amount of EUR 11,600. Said amount corresponds to a monthly salary of EUR 5,800, which consists of the salary of the contract, i.e. EUR 1,600, the “service fee” of EUR 1,250 as well as EUR 2,950 resulting from the additional contract. Said monthly salary remained outstanding for July and August 2019.

10. Furthermore, as a consequence of the aforementioned considerations and taking into account the documentation presented by the Claimant, the Single judge established that two monthly salaries, had fallen due and remained outstanding at the time of the termination of the contract by the Claimant, even though the coach put the club in default. Consequently, the Chamber concurred that the Respondent had seriously neglected its financial contractual obligations towards the Claimant.

11. On account of the above and taking into consideration the longstanding jurisprudence in this respect, the Single judge decided that the Claimant had just cause to unilaterally terminate the contract on 13 September 2019 and that the Respondent is to be held liable for the early termination of the contract with just cause by the coach.

12. In accordance with the general legal principle of pacta sunt servanda, the Single judge decided that the Respondent is liable to pay to the Claimant the amounts which were outstanding under the contract at the moment of the termination, i.e. EUR 11,600 (cf. point II.9 above).

13. In addition, taking into account the claimant’s request as well as the constant practice of the Players’ Status Committee in this regard, the Single Judge decided that the club must pay to the coach interest of 5% p.a. on the outstanding remuneration, as from the respective due dates.

14. Bearing in mind the previous considerations, the Single Judge went on to deal with the consequences of the early termination of the employment contract with just cause by the Claimant.

15. In application of the relevant jurisprudence, the Single Judge held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract and he established that no such clause was provided for in the contract.

16. Therefore, in calculating the amount of payable compensation, the Single Judge first turned his attention to the remuneration and other benefits due to the coach under the existing contract. The Single Judge pointed out that the contract signed between the Claimant and the Respondent was to run until June 2020. As a result, the Single Judge understood that, from September 2019 until 30 June 2020, the coach would have earned EUR 127,600.

17. Consequently, the Single Judge concluded that the amount of EUR 127,600 serves as the basis for the final determination of the amount of compensation for breach of contract.

18. In continuation, the Single Judge assessed as to whether the Single Judge had signed an employment contract with another club during the relevant period of time, by means of which he would have been able to reduce his loss of income. According to the constant practice of the PSC, such remuneration under a new employment contract(s) shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the general obligation to mitigate his damages.

19. In this regard, the Single Judge observed that the coach did not find new employment in order to mitigate his damages.

20. As a result, the Single Judge determined that the Respondent shall pay to the coach the amounts of EUR 127,600 as compensation for breach of contract, which is deemed to be reasonable and justified given the circumstances at stake.

21. In addition, taking into account the claimant’s request as well as the constant practice of the Players’ Status Committee in this regard, the Single Judge decided that the club must pay to the coach interest of 5% p.a. on the payable compensation.

22. 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).

23. 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 total amount at dispute in the present matter, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 15,000.

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

25. In conclusion, the Single Judge determined the costs of the current proceedings to the amount of CHF 15,000, which shall be borne by the Respondent.

26. The Single Judge concluded his deliberations by establishing that any further claim of the parties had to be rejected.

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

1. The claim of the Claimant, Gordan Petric, is partially accepted.

2. The Respondent, AE Larissa, has to pay to the Claimant within 30 days as from the date of notification of this decision the amount of EUR 11,600, plus 5% interest p.a. until the date of effective payment as follows:

a. 5% p.a. as from 1 August 2019 on the amount of EUR 5,800;

b. 5% p.a. as from 1 September 2019 on the amount of EUR 5,800;

3. The Respondent has to pay compensation for breach of contract to the Claimant within 30 days as from the date of notification of this decision in the amount of EUR 127,600, plus 5% interest p.a. as from 2 September 2019 until the date of effective payment.

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

5. The final costs of the proceedings in the amount of CHF 15,000 are to be paid by the Respondent to FIFA to the following bank account with reference to case nr. 19-01996/tle:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U SWIFT: UBSWCHZH80A

Coach Gordan Petric, Serbia & England / AE Larissa, Greece

19-01996

6. In the event that the amounts due to the Claimant in accordance with the above-mentioned numbers 2. and 3. are not paid by the Respondent within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

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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 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. 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.

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