FIFA - Decisiones estatuto del jugador - 102264 11102022

Decision of the Players’ Status Chamber passed on 11 October 2022 regarding an employment-related dispute concerning the coach A BY: Oleg Zadubrovskiy (Russia)

CLAIMANT:

Coach A, Country A Represented by

RESPONDENT:

Football Federation B, Country B Page 2

I. Facts of the case

1. As of 2 May 2018, the Coach A of Country A (hereinafter the Claimant) and the Football Federation of Country B (hereinafter the Respondent or the FF of Country B) were in an employment relationship.

2. In particular, on 14 August 2020, the Claimant and the Respondent (jointly referred to as the Parties) concluded employment agreement (hereinafter the Employment Agreement), valid from the date of its signature until 14 August 2022.

3. In accordance with Employment Agreement, the Claimant was employed by the Respondent as “National Team Head Coach AND U23 National Team Head Coach”.

4. In Clause 3 of the Employment Agreement, the Parties agreed upon, inter alia, the

following financial terms: Salaries − As from 15 August 2020 until 15 July 2021 (12 months): USD 12,000/month − As from 15 August 2021 until 15 July 2022 (12 months): USD 13,000/month − In total, the Claimant was entitled to USD 300,000 Bonuses “B will provide one (1) month equivalent Net Base Salary (as stated in 3.), as aBonus, should the Full National Team, or U23 National Team qualify for the 2nd Round of any international scheduled competition - this will be paid in full within twenty-eight (28) days of the tournament conclusion. 3.8.1 B will provide a match bonus of one thousand USD net (USD 1,000.00 net) when the Full National Team, or U23 National Team win a Federation Internationale de Football Association (FIFA) scheduled match – this will be paid in full within twenty-eight

(28) days of conclusion of the scheduled match or tournament should the match fall within a tournament (‘tournament’ here does not include qualifiers for major tournaments)” Further benefits (accommodation / flight tickets / vehicle) - “accommodation for the duration of contract. The accommodation will be at Hotel XXXX, or an equivalent same star hotel. As part of the accommodation, B will incur all expenses including laundry, internet, breakfast, lunch and dinner at the hotel.” - “car and driver available at request throughout the duration of contract” or, in case of unavailability, “all transportation expenses” Page 3 - “five (5) return business class flights per annum, ten (10) in total over the twoyear contract - on airline 1 of country B or equivalent on the airline 2 of country B to city of Country A route for the duration of contract. This will include the arrival at the beginning of contract, as well as departure at the expiry of contract.”

5. In Clause 7 of the Employment Agreement, the Parties agreed upon the consequences of a termination: “7.2 The Employer may unilaterally terminate this contract by giving thirty (30) days advance written notice to the Employee. Similarly, the Employee must give thirty (30) days advance written notice to the Employer if you wish to terminate the contract before its expiry date but in any event this clause may not be actioned until the expiry of Clause 7.4 7.3 In any event the contract may not be terminated within thirty (30) days from the commencement of a tournament date or ten (10) days from a ‘FIFA Scheduled Match Date’. 7.4 It is agreed that this contract cannot be terminated by either party before 31st December, 2020. a) Should the Employer terminate this contract after the 31stDecember, 2020,then the Employer will be liable to pay fifty percent (50%) of the remaining total base net salary, and any other outstanding payments, in the Employee

contract within thirty (30) days of written termination date - unless the contract is mutually terminated and agreed in writing by both parties. This payment will be made by direct bank deposit into the Employee’s bank account of Country A. b) Should the Employee terminate this contract after 31st December, 2020, to sign with another national team within the Football Confederation of B (XXX), then the Employee will be liable to pay one (1) month base salary (USD12,000.00 in first year and USD 13,000 in the second year) to the Employer, in the Employee contract within thirty (30) days of written termination date - unless the contract is mutually terminated and agreed in writing by both parties. This payment will be made by direct bank deposit to the Employers’ bank account.” (…) “7.9 If the Employer fails to pay the due monthly Net Base Salary to the Employee within twenty-one (21) days of the due date of payment - for the avoidance of doubt the fifth (5th) day of the following month - then the Employee, if he so wishes, may tender his resignation from his position with immediate effect. Page 4 7.9.1 If the Employee tenders his resignation for reasons of delayed payment then the Employee will NOT be liable for any penalties in regards to the early termination stated in Clause 7.4. 7.9.2 If the Employee tenders his resignation for reasons of delayed payment then the Employer will be liable to pay a total sum of USD 60,000 as compensation (or the net salary outstanding should the contract be terminated with less than four (4) months till the term’s expiry) within thirty (30) days of written termination date. The Employer will also be liable to pay any other outstanding payments in the Employee contract within thirty (30) days of written termination date. This payment will be made in one lump sum by direct bank deposit to the Employee’s A bank account unless

otherwise agreed in writing.”

6. On 31 March 2021, the Claimant was informed by the Respondent that he will be moved to a different hotel “as per the policy of B”.

7. On 6 April 2021, the Claimant informed Mr XXX (technical director of the B) that his April 2022 salary remained unpaid.

8. On 29 April 2021, Mr XXX informed the Claimant that the payment of monthly salaries will be made regularly, nonetheless, that bonuses will be paid latter.

9. On 13 June 2021, the Claimant was informed by the Respondent that the “bonus will be paid as soon as it is practically possible”.

10. On 14 June 2021, the Respondent reiterated the above.

11. On 16 July 2021, the Respondent reiterated that it is “working to arrange a fund” to make the payment of the bonus.

12. On 27 July 2021, the Respondent sent further reassurance to the Claimant regarding the financial obligations.

13. On 19 August 2021, the Claimant informed Mr XXX that his bonuses and expenses still remained unpaid.

14. In reply thereto, the Claimant received the information that there are “no updates” on the payment of the said bonuses.

15. On 11 September 2021, the Claimant informed Mr XXX that he has COVID-19.

16. On 17 September 2021, the Respondent via Mr XXX (B) sent the following WhataApp message to the Claimant: “B National Teams Committee has decided today XXX as the Head Coach for the XXXX Championship 2021 at Country C and November FIFA Window Page 5 matches at Country D.”, to which the Claimant immediately followed up via email, inquiring more information.

17. Allegedly, the Claimant was removed from the Teams WhatsApp group.

18. On 19 September 2021, the Respondent the following email to the Claimant:

19. In reply thereto, the Claimant confirmed to have receive the return ticket to Country A and inquired as to the exact date of “conclusion of the internal review”.

20. On 22 September 2021, the Respondent reiterated its previous statements of 19 September 2021 in another letter to the Claimant.

21. On 25 November 2021, the Respondent offered to mutually terminate the contract with the Claimant.

22. Allegedly, the Claimant did not accept such offer.

23. On 12 January 2022, the Parties exchanged correspondence regarding the payment of January 2022 salary. In accordance with the said correspondence, the Claimant received 75% of the January 2022 salary.

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24. On 20 January 2022, further exchange of correspondence took place regarding the outstanding salary of January 2022; the Claimant alleged that the amount of USD 528 still remained outstanding.

25. On 28 February 2022, the Respondent requested the Claimant’s “immediate attendance at the Football Federation offices of Country B in city B without delay.”

26. In his reply of 1 March 2022, the Claimant informed the Respondent that he “would be happy to arrive at the B offices, was looking forward to resuming work, confirmed that he would liaise with Mr XXX to organize his flight, and requested that B outline his work schedule.”

27. On 4 March 2022, the Claimant requested an update regarding his flight to Country

B.

28. On 7 March 2022, the Respondent replied as follows:

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29. On 14 March 2022, the Claimant requested his flight tickets to Country B as well as requested the payment of the February 2022 salary.

30. On 16 March 2022, the Claimant sent the following email to the Respondent:

31. On 23 March 2022, the Respondent replied to the Claimant, objecting that any

material breach has ever occurred. In this respect, the Respondent argued that it the Claimant was “relieved” of his position in September 2021, and, consequently informed of a termination of the Employment Agreement. In this respect, the Respondent alleged that the termination was in accordance with Clause 7.4.1. of the Employment Agreement and that therein established 50% of the total value of the contract has been duly paid.

32. The Coach informed FIFA general secretariat that he was unable to sign a new employment contract.

II. Proceedings before FIFA

33. On 16 May 2022, the Claimant filed the claim at hand before FIFA.

34. The Respondent failed to reply to the claim within the stipulated deadline.

35. A brief summary of the position of the Parties is detailed in continuation.

Page 8 a. Position of the Claimant

36. The requests for relief of the Claimant were the following: − “To determine that A resigned his position from B and terminated the Contract with just cause. − To issue a decision condemning the Club to pay a compensation in the amount of: − 1. USD 152,103.73, net of taxes

1. To award the application of five percent (5%) interest per annum, starting from 15 February 2021. ii. To impose upon B the obligation to pay any and all taxation costs and liability and provide A with any and all relevant paperwork and documents in line with the taxation legislation of Country B and the Country A. − 2. Or, in the alternative, the amount of compensation deemed appropriate by the

FIFA PSC.”

37. The Claimant argued that he terminated the Employment Agreement on 16 March 2022, pursuant to Clause 7.9 of the Contract and Annexe 2, art. 5 par. 1 of the FIFA Regulations, resigned his position and terminated the contract with just cause.

38. The Claimant asserted that the Employment Agreement was not terminated on 25 November 2021, when the Respondent offered to mutually settle. In support of his

allegations, the Claimant asserted that the Respondent even requested him to return to Country B at the beginning of 2022. b. Position of the Respondent

39. The Respondent failed to reply to the claim within the stipulated deadline.

III. Considerations of the Players’ Status Chamber

a. Competence and applicable legal framework

40. First of all, the Single Judge of the Players’ Status Chamber (hereinafter also referred to as the Single Judge) analysed whether he was competent to deal with the case at hand. In this respect, it took note that the present matter was presented to FIFA on 16 May 2022 and submitted for decision on 11 October 2022. Taking into account the wording of art. 34 of the June 2022 edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

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41. Subsequently, the Single Judge referred to art. 2 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 (July 2022 edition), the Single Judge is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a coach of Country A and the

Football Federation of Country B.

42. 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 Players (July 2022), and considering that the present claim was lodged on 16 May 2022, the March 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Admissibility of the late reply

43. At this point, the Single Judge recalled that the Respondent failed to submit its reply to FIFA general secretariat within the time limit granted. In this respect, the Single Judge pointed to art. 21 par. 1 of the Procedural Rules and concluded the said reply cannot be considered in the matter at hand.

c. Burden of proof

44. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 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. 13 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the Parties, including without limitation the evidence generated by or within the Transfer Matching System (TMS).

d. Merits of the dispute

45. 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. 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.

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1. Main legal discussion and considerations

46. The foregoing having been established, the Single Judge moved to the substance of the matter, and took note of the fact that the claim concerns a termination of a contract.

47. In this context, the Single Judge acknowledged that his task was to determine if the termination by the Claimant, which occurred on 16 March 2022, was with just cause.

48. In this respect, the Single Judge observed that two monthly salaries were outstanding on the date of termination, yet that no default notice was sent by the Coach in order to comply with the pre-requisites of art. 5 par. 1 Annexe 2 of the Regulations.

49. However, the Single Judge pointed out that the two salaries remained, in fact, unpaid by the Respondent and, what is more, based on the evidence presented by the Claimant, it is evident that the Respondent did not wish to continue the employment relationship.

50. Consequently, the Single Judge concluded the Claimant had just cause to terminate the Employment Agreement based on art. 4 par. 1 Annexe 2 of the Regulations and that the Respondent shall bear the financial consequences thereof.

51. In this respect, the Single Judge turned his attention the outstanding amounts and noted that the Claimant alleged that, next to the two monthly salaries, also bonuses and expenses were requested by the Claimant.

52. Regarding the bonuses, the Single Judge recalled that the Parties indeed contractually stipulated Claimant’s entitlement to performance bonuses. However, the Single Judge noted that the bonuses claimed related to two games played during October 2021, i.e. when the Coach was in Country A. Consequently, the Single Judge concluded to reject the claim for bonuses.

53. Equally, the Single Judge rejected the claim for expensed incurred in the Country A as they fall out of the scope of the respective clause. ii. Consequences

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

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55. The Single Judge observed that the outstanding remuneration at the time of termination, coupled with the specific requests for relief of the Coach, are equivalent to two monthly salaries under the contract, amounting to USD 26,000.

56. As a consequence, and 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. USD 26,000 (i.e. two times USD 13,000).

57. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Single Judge in this regard, the latter decided to award the Claimant interest as follows: − USD 13,000, plus 5% interest p.a. as from 16 February 2022 until the end of the effective payment. − USD 13,000, plus 5% interest p.a. as from 16 March 2022 until the end of the effective payment.

58. Having stated the above, the Single Judge turned to the calculation of the amount of compensation payable to the player by the club in the case at stake. In doing so, the Chamber firstly recapitulated that, in accordance with art. 6 par. 2 lit. d of Annexe 2 of the Regulations, 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 remuneration and other benefits due to the coach under the existing contract and/or the new contract and the time remaining on the existing contract.

59. In application of the relevant provision, 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 in the event of breach of contract.

60. In this regard, the Single Judge took note of the wording of Clause 7.9.2 of the Employment Agreement, which established that “If the Employee tenders his resignation for reasons of delayed payment then the Employer will be liable to pay a total sum of USD 60,000 as compensation (or the net salary outstanding should the contract be terminated with less than four (4) months till the term’s expiry) within thirty (30) days of written termination date. The Employer will also be liable to pay any other outstanding payments in the Employee contract within thirty (30) days of written termination date. This payment will be made in one lump sum by direct bank deposit to

the Employee’s bank account of Country A unless otherwise agreed in writing.” (emphasis added) Page 12

61. After analysing the content of the aforementioned clause, the Single Judge concluded that it fulfilled the criteria of reciprocity and proportionality, in line with the Single Judge’s longstanding jurisprudence, and therefore was to be applied in the case at hand to determine the amount of compensation payable by the association to the

Coach.

62. Consequently, the Single Judge decided that the amount of USD 60,000, as per the compensation clause agreed between the Parties in the contract, is due by the association to the Coach.

63. Lastly, taking into consideration the club’s request as well as the constant practice of the Single Judge in this regard, the latter decided to award the Coach interest on said compensation at the rate of 5% p.a. as of 16 May 2022 until the date of effective payment. iii. Compliance with monetary decisions

64. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 8 par. 1 and 2 of Annexe 2 of the Regulations, which stipulate that, with his decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

65. In this regard, the Single Judge highlighted that, against associations, the consequence of the failure to pay the relevant amounts in due time shall consist of a restriction on receiving a percentage of development funding, up until the due amounts are paid.

66. Therefore, bearing in mind the above, the Single Judge decided that the association must pay the full amount due (including all applicable interest) to the Coach within 45 days of notification of the decision, failing which, at the request of the creditor, a restriction on receiving a percentage of development funding shall become immediately effective on the association in accordance with art. 8 par. 2, 4, and 7 of

Annexe 2 of the Regulations.

67. The association shall make full payment (including all applicable interest) to the bank account provided by the Coach in the Bank Account Registration Form, which is attached to the present decision.

68. The Single Judge recalled that the above-mentioned ban will be lifted immediately upon payment of the due amounts, in accordance with art. 8 par. 8 of Annexe 2 of the

Regulations. Page 13 e. Costs

69. The Single Judge referred to art. 25 par. 1 of the Procedural Rules, according to which “Procedures are free of charge where at least one of the parties is a player, coach, football agent, or match agent”. Accordingly, the Single Judge decided that no procedural costs were to be imposed on the Parties.

70. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

71. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief made by any of the Parties.

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IV. Decision of the Players’ Status Chamber

1. The claim of the Claimant, A, is partially accepted.

2. The Respondent, Football Federation B, has to pay to the Claimant, the following amount(s): - USD 13,000 as outstanding remuneration plus 5% interest p.a. as from 16 February 2022 until the date of effective payment; - USD 13,000 as outstanding remuneration plus 5% interest p.a. as from 16 March 2022 until the date of effective payment; - USD 60,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 16 May 2022 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. Full payment (including all applicable interest) shall be made to the bank account

indicated in the enclosed Bank Account Registration Form.

5. Pursuant to art. 8 of Annexe 2 of the Regulations on the Status and Transfer of Players, if full payment (including all applicable interest) is not made within 45 days of notification of this decision, the following consequences shall apply:

1. The Respondent shall be imposed a restriction on receiving a percentage of development funding, up until the due amounts are paid.

6. The consequences shall only be enforced at the request of the Claimant in accordance art. 8 par. 7 and 8 of Annexe 2 and art. 25 of the Regulations on the Status and Transfer of Players.

7. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero

Chief Legal & Compliance Officer Page 15 NOTE RELATED TO THE APPEAL PROCEDURE: According to article 57 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 17 of the Procedural Rules).

CONTACT INFORMATION

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