F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – coach disputes / controversie allenatori (2020-2021) – fifa.com – atto non ufficiale – Decision 26 January 2021

Decision of the

Single Judge of the Players' Status Committee

passed on 26 January 2021

regarding an employment-related dispute concerning the coach Sinisa Mihic

BY:

Johan van Gaalen (South Africa), Single Judge of the PSC

CLAIMANT:

Sinisa Mihic, Croatia

Represented by Mr Davor Radić

RESPONDENT:

Al Shabab Sporting Club, Kuwait

I. FACTS OF THE CASE

1. On an unspecified date, the Croatian coach, Sinisa Mihic (hereinafter: the Claimant or the coach) and the Kuwaiti club, Al Shabab SC (hereinafter: the Respondent or the club) allegedly signed an employment contract valid as from 1 July 2019 until the end of the season 2019/2020, i.e. 30 June 2020 (hereinafter: the contract).

2. The parties dispute whether the contract was in fact executed, as stated below.

3. According to the contract, the coach was entitled to a monthly remuneration of KWD 1,000 payable at the end of each month.

4. On 8 August 2020, the Claimant was paid “366 dinar 500 fils” corresponding to “11 days worked in July 2019”.

5. On 22 August 2019, the coach was paid KWD 1,000 for “August 2019”.

6. The coach remained unemployed after his time at the club.

7. On 7 November 2020, the coach filed the claim at hand against the club.

8. The coach holds that on 19 August 2019 he was verbally fired by the club, together with the rest of the coaching staff. He further claims that such dismissal “is demonstrated by the lack of any Club’s communication stating the opposite. Therefore, the Respondent shall be prevented from now alleging differently” under the theory of estoppel and venire contra factum proprium. The coach is also of the opinion that the club has never requested him to come back, which denotes his dismissal.

9. The coach then explained that on 19 August 2019 he was paid KWD 2,000.

10. Furthermore, the coach explained that he never received a copy of the contract signed by the club. He filed photographs of himself in what he claims to be the undertaking of his activities at the club.

11. The coach claimed that the club did not have just cause to terminate the contract and hence requested compensation for breach of contract in the amount of KWD 10,000, corresponding to the residual value of the contract, plus 5% interest p.a. as from 19 August 2019. The coach further requested payment of additional compensation “to be determined by the FIFA PSC”, payment of CHF 5,000 as legal expenses, and that the club bears the costs of the proceeding.

12. In its reply to the claim, the Respondent argued as follows (quoted verbatim): “Our Club has been agreed with the above mentioned coach To work in our club as a football coach. Accordingly and Based on this agreement, we prepared a DRFT copy of a contract for information only, not for contracting (To enable the coach to read the terms of the contract).

It was agreed with the coach on a contractual trial period 100 days According to the terms of the Kuwaiti Olympic Committee.

During the trial period, the management of ALSHABAB SPORTING CLUB did not reached with Mr Sinisa Mihic in a final agreement for a final signing and approval of the contracting.

And according to mathematical laws the above mentioned coach was awarded compensation of 1,366.500 Kuwaiti Dinar for the period he spent on auditioning with the team. Please find the attached file (copy of payment receipt Signed by Mr Sinisa Mihic)

As follows:

1000 Kuwaiti Dinar as a Compensation for August 2019.

366.500 Kuwait Dinar as a Compensation for only 11 days from July 2019.

Kindly note our club reserves the right to cancel the agreement with Mr Sinisa Mihic at a later stage If we didn't get final agreement and we notified him formally by official channel.

However kindly note the draft of contract that Mr Sinisa Mihic cited and deepened on it as evidence as agreement and approval from our club wrong and illegal because its sinned only from his side He Is not obligated to us to Implement his terms

In the end Mr Sinisa Mihic has no right to ask our club any finical payment”

II. CONSIDERATIONS OF THE SINGLE JUDGE OF THE PLAYERS’ STATUS COMMITTEE

a. Competence and applicable legal framework

13. First of all, the Single Judge of the Players’ Status Committee (hereinafter also referred to as Single Judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was presented to FIFA on 7 November 2020 and submitted for decision on 26 January 2021. Taking into account the wording of art. 21 of the January 2021 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Single Judge (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

14. Subsequently, the Single Judge referred to art. 3 par. 1 of the Procedural Rules and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. c) of the Regulations on the Status and Transfer of Players (edition January 2021), he is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Croatian coach and a Kuwaiti club.

15. Subsequently, the Single Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Coach (edition January 2021), and considering that the present claim was lodged on 7 November 2020, the October 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

16. 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. Likewise, he stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties.

17. In this respect, the Single Judge also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

c. Merits of the dispute

18. His competence 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 arguments and the documentation submitted by the parties. 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.

i. Main legal discussion and considerations

19. The Single Judge started by noting that the parties dispute whether the contract was indeed executed, hence being a valid legal document binding the Claimant and the Respondent or not, or whether the coach was hired for a trial period only.

20. Accordingly, the Single Judge turned to the evidence on file and observed that the documentation brought forward by the coach demonstrates, to some extent, that he appears to have been effectively engaged by the club, as the photos filed denote.

21. What is more, the Single Judge duly observed that as per the club’s submissions, it is clear that the Respondent had agreed with the coach that his services would be hired. The Single Judge arrived at this conclusion particularly due to the fact that no evidence was advanced by the Respondent to demonstrate that the coach was undergoing a “test” period.

22. Lastly, and conversely to the club’s submissions, the Single Judge found that the club admitted to have been entitled to “to cancel the agreement with Mr Sinisa Mihic at a later stage If we didn't get final agreement and we notified him formally by official channel”, which confirms, in the Single Judge’s view, his assessment that the parties had reached a common understanding of the employment conditions.

23. Consequently, due to the lack of evidence capable to rebut the coach’s claim, the Single Judge found that the parties had validly concluded the contract.

24. At this point, the Single Judge recalled the jurisprudence of the Players’ Status Committee, according to which a termination of a contract shall be always an ultima ratio measure. To this end, the Single Judge observed that it stood undisputed that the coach had been dismissed by the club without any valid reason. Accordingly, the Single Judge found that the club terminated the contract without just cause and shall hence bear the consequences that follow.

ii. Consequences

25. Having stated the above, the Single Judge turned his attention to the question of the consequences of such unjustified breach of contract committed by the club.

26. Having stated the above, the Single Judge turned to the calculation of the amount of compensation payable to the coach by the club in the case at stake. In doing so, the Single Judge firstly recapitulated that, in accordance with the well-established practice of the Players’ Status Committee, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including in particular, the remuneration and other benefits due to the coach under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period.

27. Accordingly, the Single Judge held that he first of all had to clarify as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Single Judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

28. As a consequence, the Single Judge determined that the amount of compensation payable by the club to the coach had to be assessed in line with the aforementioned jurisprudence.

29. Bearing in mind the foregoing as well as the claim of the coach, the Single Judge proceeded with the calculation of the monies payable to the coach under the terms of the contract. Consequently, the Single Judge concluded that the amount of KWD 10,000 serves as the basis for the determination of the amount of compensation for breach of contract.

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

31. However, the Single Judge noted that the coach remained unemployed during the relevant period.

32. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Single Judge decided that the club must pay the amount of KWD 10,000, which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

33. Lastly, taking into consideration the coach’s request as well as the constant practice of the Players’ Status Committee in this regard, the Single Judge decided to award the coach interest on said compensation at the rate of 5% p.a. as of the date of claim until the date of effective payment.

34. In continuation, the coach addressed the “additional compensation” requested by the coach, and decided that such request must be rejected due to its lack of legal, contractual and/or regulatory basis.

d. Costs

35. The Single Judge referred to article 18 par. a lit. 1) of the Procedural Rules, according to which no costs shall be levied by the parties for claims lodged between 10 June 2020 and 31 December 2020 (both inclusive). Accordingly, the Single Judge decided that no procedural costs were to be imposed on the parties.

36. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

III. DECISION OF THE SINGLE JUDGE OF THE PLAYERS' STATUS COMMITTEE

1. The claim of the Claimant, Sinisa Mihic, is partially accepted.

2. The Respondent, Al Shabab Sporting Club, has to pay to the Claimant the following amount:

- KWD 10,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 7 November 2020 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amount.

5. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amount due, plus interest as established above is not paid by the Respondent within 30 days, as from the notification by the Claimant of the relevant bank details to the Respondent, the following consequences shall arise:

1.

In the event that the payable amount as per in this decision is not paid within the granted deadline, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

7. This decision is rendered without costs.

For the Players' Status Committee:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION:

FIFA may publish this decision. For reasons of confidentiality, 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 Procedural Rules).

CONTACT INFORMATION:

Fédération Internationale de Football Association

FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland

www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777