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 3 November 2020

Decision of the

Single Judge of the PSC

passed on 3 November 2020

regarding an employment-related dispute concerning the coach Nebojsa Milicic Lekic

BY:

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

CLAIMANT:

NEBOJSA MILICIC LEKIC, Spain

Represented by Mr Hrovje Raic

RESPONDENT:

ESTEGHLAL FC, Iran

I. FACTS OF THE CASE

1. On 4 January 2020, the coach and the club concluded an employment contract (hereinafter: the contract), valid as from 8 January 2020 until 31 May 2020, whereby the club undertook to pay to the coach a monthly salary of EUR 3,600 net by the 15th day of the following month.

2. In accordance with clause 3.2 of the contract, the club undertook to pay to the coach a sign-on fee amounting to EUR 17,000 by “no later than 5 days after signature”, i.e. by 9 January 2020.

3. Clause 5.4 of the contract reads as follows: “The Club shall provide 2 round-trip flight tickets in Economy class from Tehran to Madrid and vice-versa, for the Coach and his wife”.

4. By means of his letter dated 20 May 2020, the Claimant put the Respondent in default of payment in the amount of EUR 14,400, corresponding to the salaries of January, February, March and April 2020 in the amount of EUR 3,600 each (3,600*4 = 14,400); and granted the Respondent a deadline of 15 days to comply with its financial obligations towards him. However, to no avail.

5. Thereafter, by means of his letter dated 17 July 2020, the Claimant put the Respondent in default of payment, again, this time in the amount of EUR 18,000, corresponding to the salaries as from January until May (both included), in the amount of EUR 3,600 each (3,600*5 = 18,000); granting the Respondent a 10 days’ deadline to remedy the default; again, to no avail.

6. On 25 August 2020, the coach lodged a claim against the club before FIFA, requesting outstanding remuneration in the total amount of EUR 23,322, plus 5% interest p.a. as from the respective due dates until the date of effective payment, broken down by the Claimant as follows:

- EUR 3,600, corresponding to the salary of January 2020;

- EUR 3,600, corresponding to the salary of February 2020;

- EUR 3,600, corresponding to the salary of March 2020;

- EUR 3,600, corresponding to the salary of April 2020;

- EUR 3,600, corresponding to the salary of May 2020;

- EUR 5,322 corresponding to the 2 flight tickets’ expenses (Tehran – Madrid) incurred by the Claimant (supporting document provided by the Claimant, where an estimation of Skyscanner for return tickets Iran – Spain in the amount of EUR 2,661 is presented).

7. In addition, the Claimant requested: 1.) the Respondent be ordered to “pay all relevant taxes and state givings on top of the above mentioned net amounts and to provide evidence thereof”; and 2.) the Respondent be ordered to pay to the Claimant the “legal expenses incurred and procedural costs before the Players Status Committee”.

8. In his claim, the Claimant explained that the Respondent refused to comply with the terms and conditions of the contract, despite the Claimant having complied with his contractual obligations; meaning that “the Respondent did not act in accordance with the general principle of ‘pacta sunt servanda’”.

9. In its reply, the club firstly held that monetary transfers from Iran to other countries “is still an issue because of the sanctions imposed on our country and our banks and during the last 2 months we asked [the coach] to allow the necessary time to find a proper way to remit his salaries to his account”.

10. Furthermore, the Respondent referred to the outstanding salaries claimed by the coach and stated the following: “We are accepting our obligation to pay his due salaries according to the contract which consists of 5 months' salaries in the total amount of 18.000 Euros and hereby we ask you and the claimant to allow the necessary time to pay his salaries accordingly […]”.

11. Nevertheless, as to the amount of EUR 5,322 claimed by the coach as flight tickets’ expenses, the Respondent held that such claim shall be rejected, insofar, in the documentation provided by the coach, only the amount of EUR 2,661 appears as an estimation of the expenses incurred by the Claimant. Moreover, the Respondent held that the contract finished in May 2020 and it seems not reasonable that the coach is now claiming the alleged price of flight tickets Iran – Spain (for the date of 27 August 2020) and Spain – Iran (for the date of 3 September 2020). In this regard, the Respondent further stated that the club “has bought the tickets for the coach in proper time and delivered it to the Claimant […]”.

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

a. Competence and applicable legal framework

12. 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 25 August 2020 and submitted for decision on 3 November 2020. 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 are applicable to the matter at hand.

13. Subsequently, the Single Judge referred to art. 3 par. 1 of the Procedural Rules and observed 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 (edition October 2020), the Single Judge would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Spanish coach and an Iranian club.

14. Subsequently, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Player (edition October 2020), and considering that the present claim was lodged on 25 August 2020, the August 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

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

16. 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

17. His competence and the applicable regulations having been established, the Single Judge entered into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. He emphasised, however, 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

18. The Single Judge entered into the analysis of the substance of the matter, and acknowledged that the dispute at stake only involved outstanding amounts allegedly due by the Respondent to the Claimant.

19. In this context, the Single Judge observed that, whereas the Respondent admitted being in default of payment regarding the whole fixed value of the contract, i.e. the monthly salaries as from January 2020 until May 2020 in the total amount of UR 18,000; the Respondent rejected the claim of the coach as regards the flight tickets’ expenses.

20. In this respect, given that it remained undisputed between the parties that the Respondent failed to pay the Claimant’s salaries as from January 2020 until May 2020, without any prima facie contractual basis, the Single Judge concluded that the Respondent must be condemned to pay to the Claimant the amount of EUR 18,000 corresponding to 5 monthly salaries of EUR 3,600 each, in application of the general principle of law, pacta sunt servanda.

21. Regarding the flight tickets’ expenses requested by the Claimant, the Single Judge firstly noted that the Claimant only provided a screenshot of the website Skyscanner, where a price of EUR 2,661.27 is displayed as the price of return tickets Iran – Spain for the dates of 27 August 2020 and 3 September 2020, respectively.

22. Nevertheless –continued the Single Judge–, the Claimant failed to provide sufficient evidence of having effectively incurred in such payment, insofar no banking check or statement was provided by the Claimant in support of having incurred in such expense. Thus, the Single Judge determined that the estimation provided by the Claimant shall be disregarded. Notwithstanding the above, the Single Judge emphasized that, since it was contractually agreed between the parties that the Respondent would pay to the Claimant return tickets Tehran – Madrid, and given that the Respondent did not provide any evidence of having proceeded with any such payment, the Single Judge decided that the Respondent shall pay to the Claimant the price of return tickets Tehran – Madrid for 2 people (the coach and his wife, as contractually agreed).

23. For this purpose, the Single Judge requested FIFA travel to provide an estimation of the has average costs of 2 return tickets in economy class Tehran – Madrid. In the report provided by FIFA travel in this regard, the average cost of the said 2 return tickets amount to EUR 2,300, which the Single Judge considered as a well-supported and reasonable amount to be granted to the coach as per clause 5.4 of the contract.

ii. Consequences

24. Having stated the above, the Single Judge held that the Respondent is to be held liable for the non-payment of the coach´s monthly instalments as from January 2020 until May 2020, which equals to EUR 18,000; as well as 2 return tickets in economy class Tehran – Madrid in the amount of EUR 2,300.

25. In view of the above and in light of the principle of pacta sunt servanda, the Respondent must pay the Claimant the amount of EUR 20,300 as outstanding remuneration as well as 5% interest as follows:

- 5% interest p.a. on the amount of EUR 3,600 as from 16 February 2020 until the date of effective payment;

- 5% interest p.a. on the amount of EUR 3,600 as from 16 March 2020 until the date of effective payment;

- 5% interest p.a. on the amount of EUR 3,600 as from 16 April 2020 until the date of effective payment;

- 5% interest p.a. on the amount of EUR 3,600 as from 16 May 2020 until the date of effective payment;

- 5% interest p.a. on the amount of EUR 3,600 as from 16 June 2020 until the date of effective payment;

- 5% interest p.a. on the amount of EUR 2,300 as from 31 May 2020 until the date of effective payment.

26. The Single Judge concluded its deliberations as to the merits of the dispute by establishing that the Claimant’s claim is partially accepted. All further claims of the Claimant are rejected.

d. Costs

27. The Single Judge recalled the contents of art. 18 par. 1 lit i) of the Procedural Rules, which stipulates that for any claim or counter-claim lodged between 10 June 2020 and 31 December 2020 (both inclusive), no procedural costs shall be levied. Thus, considering that the present claim was lodged on 25 August 2020, the Single Judge determined that no procedural costs shall be levied in the present proceedings.

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

1. The claim of the Claimant, NEBOJSA MILICIC LEKIC, is partially accepted.

2. The Respondent, ESTEGHLAL FC, has to pay to the Claimant outstanding remuneration in the amount of EUR 20,300, plus interests, calculated as follows:

- 5% interest p.a. on the amount of EUR 3,600 as from 16 February 2020 until the date of effective payment;

- 5% interest p.a. on the amount of EUR 3,600 as from 16 March 2020 until the date of effective payment;

- 5% interest p.a. on the amount of EUR 3,600 as from 16 April 2020 until the date of effective payment;

- 5% interest p.a. on the amount of EUR 3,600 as from 16 May 2020 until the date of effective payment;

- 5% interest p.a. on the amount of EUR 3,600 as from 16 June 2020 until the date of effective payment;

- 5% interest p.a. on the amount of EUR 2,300 as from 31 May 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 deadline is not paid within the granted, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

For the Single Judge of the PSC:

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