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 23 March 2021

Decision of the

Players' Status Committee

passed on 23 March 2021

regarding an employment-related dispute concerning the coach Israel Jose de Lira

BY:

Vitus Derungs (Switzerland), Single Judge of the PSC

CLAIMANT:

Israel Jose de Lira, Brazil

represented by Mr Diego Eidelvein do Canto

RESPONDENT:

Akwa United FC, Nigeria

I. FACTS

1. On 19 November 2018, the Claimant and the Respondent signed a contract for the position of assistant coach, valid for one year and – according to the Claimant – renewable for an additional year.

2. According to the contract, the coach was inter alia entitled to:

- a monthly salary of Nigerian Naira (NGN) 750,000;

- a bonus of NGN 50,000 for ‘away win’, a bonus of NGN 30,000 for ‘away draw’ and a bonus of NGN 30,000 for ‘home win’.

- a ‘station feeding allowance’ of NGN 7,500 a day;

- a basic furnished apartment and a return ticket to Brazil.

3. Moreover, as to the termination of the contract, the contract holds the following clauses:

‘7. If for any reason Mr. Israel Jose de Lira decides to abandon this contract, he shall be liable to a sum equivalent of his basic contract;

8. That if the team AKWA UNITED FOOTBALL CLUB decides to arbitrarily terminate his contract for no acceptable reason, Mr. Israel Jose de Lira shall be compensated with a six months of his basic salary as severance pay;

9. The Club reserves the right to terminate the contract of the Assistant Head Coach on grounds of INDISCIPLINE, INSUBORDINATION and DECLINING PRODUCTIVITY as entrenched in the Club’s Code of Conduct’.

4. On 10 June 2019, the Respondent sent a letter to the Claimant, in which it pointed out that the Claimant and his assistant had a ‘bad productivity in the national championship’ and had ‘violent conduct before a Camp Commandant in a match of the Super Six of the Nigeria Professional Football League Championship’, however according to the Claimant without any evidence.

5. On 12 June 2019, the Respondent ordered the Claimant to no participate in the preparation of the upcoming matches of its club.

6. On 19 June 2019, the Claimant put the Respondent in default asking for the following aspects:

‘(a) immediately return Claimant’s passport;

(b) continue to provide the chauffer driver set forth in the Contract;

(c) provide the relevant information and documents that would substantiate the Club’s decision and the sanctions applied to the Claimant;

(d) withdraw the suspension, which should be considered null and void for any legal and/or contractual purposes and

(e) immediately allow the Head Coach to resume his activities.’

7. On 20 June 2019, the Respondent send a letter to the Claimant, by means of which it informed the Claimant ‘as per the terms of your one year (one football season), the club is not desirous of renewing the contract, hence this letter of notice, no thanks to your poor disciplinary records, insubordination, non-respect to constitute authority and violent conduct contrary to the club’s code of conduct’.

8. On 16 July 2019, the Claimant informed that he deemed that the contract was terminated without just cause and asked for his outstanding remuneration and compensation for breach of contract.

9. In November 2019, the Respondent made a payment of NGN 340,000 related to the performance bonus.

10. On 16 December 2020, the Claimant lodged a claim against the Respondent, claiming the following amounts:

Outstanding remuneration in the total amount of NGN 1,108,000:

- NGN 500,000 as salary due until the date of termination of the contract, linked to the period between 1 and 20 June 2019;

- NGN 40,000 as hotel costs;

- USD 1,000 as fine paid to the Nigerian Government as he wished to return to Brazil but did not have a valid passport/residence permit.

Compensation for breach of contract:

- NGN 4,500,000 as compensation for breach of contract based on art. 8 of the contract;

- NGN 4,000,000 as compensation for breach of contract based on the residual value of the contract between 20 June and October 2019).

Furthermore, the Claimant asked for the imposition of sporting sanctions on the Respondent, as well as it that it should be ordered to pay legal costs.

11. The Claimant explains that he acted as the assistant of his son, Rafael Everton Assis de Lira, which construction was accepted by the Respondent. Moreover, the Claimant explains that upon signing of the contract, the Respondent retained his passport.

12. The Claimant further pointed out that after the receipt of the letter dated 10 June 2019, he was asked to return his club properties, and the service of the driver the Respondent arranged for the Claimant, was stopped.

13. What is more, according the Claimant, the termination of the contract was made without just cause. In this respect, the Claimant pointed out that his contract was supposed to ran for one year as of 30 October 2018, i.e. until 30 October 2019, and not only for one football season, as pointed out by the Respondent. The reason brought forward by the Respondent to terminate the contract, i.e. that the season in Nigeria was finished, can therefore not be upheld.

14. Moreover, the Claimant points out that the Respondent apparently did not terminate the contract due to the alleged disciplinary misbehaviour, which is anyway denied by the Claimant.

15. Also, the Claimant contests the validity of the suspension on 10 June 2019, and also pointed out that the Respondent failed to pay him several salaries.

16. Finally, the Claimant pointed out that the compensation clause in article 8 of the contract should be applied.

17. In its reply to the Claimant’s claim, the Respondent argued that the duration if the contract wad to be considered one football year (i.e. a football season) and not one calendar year.

18. In this respect, it also refers to a letter issued by the League Management Company (the administrators of the Nigeria Professional Football League), which allegedly concluded on 23 July 2019 that in disputes relating to the end dates of contracts of players for the 2018/2019 season, all contracts that “is not valid until the calculated completion of the 2019/2020 season” is “deemed to have expired at the end of the 2018/2019 season”.

19. Moreover, the Respondent argues that the Claimant signed a new contract with Vandrezzer Football Club in Nigeria.

20. As to the outstanding remuneration, the Respondent argues that it paid all the salaries the Claimant was entitled to until June 2020. Further, the Respondent argues that the amount claimed as hotel expenses and travel expenses cannot be awarded, as it had already provided a flight ticket to the Claimant, being its only contractual obligation.

21. In addition, the Respondent stated that it did not terminate the contract, as the contract automatically ended at the end of the season. Therefore, it cannot be concluded that the Respondent had terminated the contract without just cause.

22. Also, the Respondent refers to article 8 of the contract and states that said article is not applicable in the matter at hand, as there was ‘no termination for no acceptable reason’.

23. Finally, the Respondent explicitly denied that it took the passport of the Claimant, and that therefore, it should be held liable for the payment of the fine of USD 1,000.

24. On 19 September 2019, the Claimant signed a new contract with the Nigerian club Vandrezzer Football Club, valid between 19 September 2019 and 30 October 2019, based on which he was entitled a monthly salary of NGN 1,000,000 and a ‘relocation fee’ of NGN 2,000,000. However, the Claimant argued that he never received any salaries from his new club, due to the fact that said club was in financial problems as a result of the COVID-19 pandemic.

II. CONSIDERATIONS OF THE SINGLE JUDGE OF THE PSC

1. First of all, the Single Judge of the PSC (hereinafter also referred to as Single Judge) analysed whether he was competent to deal with the case at hand. Taking into account the wording of art. 21 of the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

2. Subsequently, the Single Judge of the PSC referred to art. 3 par. 1 of the Procedural Rules and emphasised that, in accordance with art. 23 par. 1 in combination with art. 22 lit. c) of the Regulations on the Status and Transfer of Players, the Single Judge of the PSC is competent to deal with employment-related disputes between a club and a coach of an international dimension.

3. In continuation, the Single Judge of the PSC analysed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present matter. In this respect, the Single Judge of the PSC confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering that the claim was lodged on 17 December 2020, the October 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

4. With the above having been established, the Single Judge of the PSC entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. However, the Single Judge of the PSC emphasized that in the following considerations it will refer only to 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, on 30 October 2018, the Claimant concluded a contract with the Respondent, valid for one year and – according to the Claimant, renewable for an additional year.

6. Subsequently, the Single Judge observed that the Claimant lodged a claim before FIFA for breach of contract without just cause, arguing that the Respondent unilaterally terminated the contract without valid reasons on 21 June 2020, allegedly because of the poor sporting performance, and also arguing that the contract had ended because of the fact that the season in Nigeria had ended.

7. Moreover, the Single Judge of the PSC noted that the Respondent, in its reply to the Claimant’s claim, indicated that the contract was only valid for one year and referred to a letter issued by the administrators of the Nigeria Professional Football League. Moreover, the Respondent indicated that no remuneration remained outstanding and that it is of the opinion that the contract expired and was not unilaterally terminated.

8. In view of the above, the Single Judge considered that the main legal issue at stake is to determine whether the contract was unilaterally terminated or whether it expired by law, and if the contract was unilaterally terminated, whether the Respondent had a just cause to do so.

9. In this respect, the Single Judge, first of all, wish to address that there appears to existed a discussion between the parties as to the duration of the contract. The Claimant is of the clear opinion that the contract was valid for one calendar year as of 19 November 2018, i.e. until 18 November 2019, the date the parties signed the contract. On the other hand, the Respondent, in several correspondences to the Claimant, appears to be of the opinion that the contract was valid for one sporting season, i.e. until the end of 2018/2019 season in Nigeria, i.e. 29 June 2019. In this respect, the Respondent also referred to a letter from the administrators of the Nigerian Professional Football League, in which it was advised that clubs would limit the duration of the contracts with its players to sporting seasons.

10. The Single Judge then focussed on the exact wording of the contract and noted the relevant clause simply states that the duration of the contract is a ‘One (1) year renewable contract’, without any further indication. What is more, the Single Judge was of the opinion that the letters of the administrators of the Nigerian Professional Football League (which only refers to players) are not one-to-one applicable to the contractual relation between the parties in the matter at hand. What is more, any ambiguity in the wording of clauses in the contract can - according to the Single Judge of the PSC -, not be upheld against the Claimant, as it was the Respondent who was responsible for a clear and unequivocal wording of the contract.

11. In conclusion, the Single Judge of the PSC established that the contract between the parties was valid between the date of signature, i.e. 19 November 2018 and 18 November 2019.

12. Bearing in mind the above, the Single Judge turned his attention to the contents of the letter dated 20 June 2019, by means of which the Respondent informed the Claimant that this letter should serve as a notice, and that it did not wish to renew the contractual relationship. Although the letter does not contain a clear indication whether or not the contact is to be considered terminated as per that date, the Single Judge was convinced that by indicating the alleged behaviour of the Claimant, in combination with the reference to poor sporting performance, had to be indicated as the wish of the Respondent to terminate the contract. What is more, the Single Judge also took into account that already on 12 June 2019, the Claimant was released from his duties by the Respondent, due to his alleged misbehaviour and poor sporting performance.

13. Based on all the above circumstances, the Single Judge was of the clear opinion that the letter dated 20 June 2019 had to be considered as a unilateral termination of the contract.

14. Analysing the reasons brought forward by the Respondent in the letter dated 20 June 2019, as well as in its reply to the claim of the Claimant, the Single Judge noted that the alleged misbehaviour of the Claimant is not backed by any kind of documentary evidence, and is moreover, explicitly denied by the Claimant. Furthermore, the Single Judge of the PSC referred to the general practice of the PSC that an alleged poor sporting performance cannot be one-to-one attributed to a coach. As a result, the Single Judge concluded that in the matter at hand, the reasons brought forward by the Respondent in its letter dated 20 June 2019, could not justify a premature termination of an employment contract.

15. In view of all the previous considerations, the Single Judge established that the termination of the contract on 20 June 2019 was made without just cause by the Respondent and, as a result, the Claimant is entitled to outstanding remuneration and compensation for breach of contract

16. First of all, the Single Judge concurred that the Respondent must fulfil its obligations as per employment contract up until the date of termination of the contract in accordance with the general legal principle of “pacta sunt servanda”.

17. However, the Single Judge noted from the information on file that the Claimant eventually had confirmed that he received his salary for the month of June 2010 from the Respondent. As a result, the Single Judge decided to not award outstanding salaries, as the Respondent appears to have fulfilled all it contractual (salary) obligations until the date of termination.

18. Further, the Single Judge decided that the amount claimed by the Claimant as hotel expenses cannot be awarded, based on the lack of a contractual basis. Finally, as to the fine allegedly paid for by the Claimant as he wanted to leave Nigeria without a valid residence permit, the Single judge established that there is no evidence on file that said amount was effectively paid by the Claimant. Therefore, the Single Judge decided to also reject said part of the Claimant’s claim.

19. In continuation, the Single Judge focused his attention on the calculation of the amount of compensation for breach of contract in the case at stake. In this respect, the Single Judge held that he 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.

20. In this respect, the Single Judge noted that pursuant to article 8 of the contract, the following was agreed between the parties: “8. That if the team AKWA UNITED FOOTBALL CLUB decides to arbitrarily terminate his contract for no acceptable reason, Mr. Israel Jose de Lira shall be compensated with a six months of his basic salary as severance pay”.

21. Having analysed the contents of said clause, the Single Judge was of the opinion that said compensation clause, in this specific matter at hand, can be considered as reasonable and proportionate, as it offers the Claimant 6 monthly salaries, whereas his contract would originally expire at the end of October 2019 .

22. Therefore, after having proceeded with the calculation of the monies payable to the Claimant as per the compensation clause, the Single Judge concluded that the Claimant is entitled to six monthly salaries of NGN 750,000 each, i.e. the total amount of NGN 4,500,000 as compensation for breach of contract without just cause.

23. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber and the Players’ Status Committee in this regard, the Single Judge decided to award the Claimant interest at the rate of 5% p.a. on the amount of NGN 9,000,000 as of 17 December 2020.

24. For the sake of completeness, the Single Judge of the PSC established that no further mitigation shall be applied or additional

25. In continuation, the Single Judge of the PSC 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 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.

26. In this respect, the Single Judge of the PSC referred to the Covid-19 Football Regulatory Issues – FAQ, published on 11 June 2020 which establish that, given the current circumstances, for any claim lodged between 10 June 2020 and 31 December 2020 (both inclusive), there will be no requirement to pay an advance of costs and no procedural costs shall be ordered. Therefore, the Single Judge established that the present decision shall be rendered without costs.

III. DECISION OF THE SINGLE JUDGE OF THE PSC

1. The claim of the Claimant, Israel Jose de Lira, is partially accepted.

2. The Respondent, Akwa United FC, has to pay to the Claimant, the following amount:

- NGN 4,500,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 17 December 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 45 days, as from the notification by the Claimant of the relevant bank details to the Respondent, the following consequences shall arise:

 1.

The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players). 2.

In the event that the payable amount as per in this decision is still not paid by the end of the ban of three entire and consecutive registration periods, 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