FIFA - Decisiones estatuto del jugador - Alves Cardoso 23052023

REF. FPSD-8530

Decision of the Players’ Status Chamber passed on 23 May 2023 regarding an employment-related dispute concerning the coach Eddie Walter Alves Cardoso BY: Oleg ZADUBROVSKIY (Russia)

CLAIMANT:

Eddie Walter Alves Cardoso, Portugal Represented by Duarte Costa

RESPONDENT:

Nõmme Kalju FC, Estonia pg. 2

REF. FPSD-8530

I. Facts of the case

1. The parties to the dispute are the Portuguese coach Eddie Walter Alves Cardoso (hereinafter: Claimant or coach) and the Estonian club Nõmme Kalju FC (hereinafter: Respondent or club).

The pre-contract

2. On 22 December 2021, the parties concluded a document titled “Pre-Agreement/ Confirmation” (hereinafter: the pre-contract).

3. In such pre-contract, the parties outlined the essentialia negotii that would govern their employment relationship, with the coach being hired as head coach of the Respondent for a period of 2 years.

4. In particular, the pre-contract establishes as follows: “Both parties recognize that for the position of Head Coach a UEFA Pro License and

[vaccination] certificate is [required]. Parties agree to engage in co-operation despite the fact that the Coach has a UEFA A license and he is not [vaccinated]. The Coach understands that if by changes in law he can’t work as the Head Coach of a football club, he will bear the risk of [losing] his job.”

5. On 14 February 2022, the Portuguese Football Federation (FPF) issued a certificate inter alia confirming that the coach had a UEFA A License valid until 31 December 2022.

The contract

6. On 3 March 2022, the parties signed an employment contract (hereinafter: the contract) valid as from the same date until 10 November 2023.

7. According to the contract, the Respondent undertook to pay the Claimant EUR 2,600 gross

by the 12th day of the subsequent month.

8. Clause 14.5 of the contract reads as follows: “Taking into account the specifics of the Employer and the resulting peculiarities of the Employee’s work, the Parties agree that by signing this employment contract that the Employer has the exclusive right to terminate the Employment Contract after the first year, notifying the Employee at least (1) month in advance and in such case reimbursing the Employee for his two (2) months gross earnings.”

9. Clause 15.3 of the contract reads as follows: Disputes arising between the Coach and the Club from labour law are resolved with negotiations on the basis of this Contract, annexes to the Contract, documents regulating work pg. 3

REF. FPSD-8530 procedure, other Club documents which extend to the Coach. If an agreement is not reached, then the disputes are resolved pursuant to the law of the Republic of Estonia.”

10. The contract contained an Annex 1, which listed the coach’s duties. As such, said Annex specifically reads that one of the duties undertaken by the coach was to “hold a coach’s license at UEFA A level and obtain a UEFA PRO license as soon as possible”.

The termination of the contract

11. It stood undisputed between the parties that during the 2022 season, the club learned that the coach had not started any process in order to obtain his UEFA Pro Licence. Contextually, the parties began discussing alternative positions for the coach.

12. On 11 October 2022, the coach sent the following message to the club’s chairman, via WhatsApp: “I have decided to consider your offer to help Kalju in other projects with the following

conditions:

1. Same Salary that I have currently 2 car 3 House 4 Extension of the contract until December 2023 5 Club contribution of 40% for the UEFA PRO license”.

13. On the same day, the club’s chairman replied also via WhatsApp and stated that he “like the idea a lot” and that it was a “good start for our conversation”.

14. On 14 October 2022, the parties exchanged the following messages: “Coach: Good morning [Respondent Chairman]. No problem we can speak tomorrow. I spoke to [Respondent CEO] about the dismissal letter that I need from the club, saying the date I stopped coaching the team.

Club: Hi. Lets take [care of] everything when I get back.

Coach: Sure we will conclude everything when you [get] back but I need this letter.”

15. On 16 October 2022, the parties had a meeting to discuss their future. The Club admits that in such meeting it agreed to issue the dismissal letter allegedly requested by the coach.

16. On the same date, the club sent an e-mail whereby it terminated the contract. It read as follows: “According to the [contract], [the Respondent] announces that it will exercise the right fixed in signed [the pre-contract] and the clause of the contract 14.5 to terminate the [contract] due to the fact that the head coach Alves Cardoso Eddie Walter has not been able to provide the club with the necessary UEFA PRO License for his work, and as a result, and according to pg. 4

REF. FPSD-8530 international rules and regulations, he has no legal basis to continue his work as the head coach of the representative team of [the Respondent]. Consequently, we ask you to fulfil the obligation arising from clause 13.2, 13.3 of the contract by 21.10.2022 at the latest. We would also like to inform you that regarding the incident that took place after the cup match on 18.08.2022, where head coach Alves Cardoso Eddie Walter physically and verbally attacked the President of the club, an internal investigation is still taking place as part of the disciplinary procedure, which is scheduled to end on 03.11.2022, when the club's board will make a decision in this case. Please kindly provide your explanations of the incident in written no later than 21.10.2022”.

17. On 21 October 2022, the coach replied to the e-mail of the club as follows: “Dear Sirs: As per your email correspondence from 16th October 2022, in which I’ve been informed of the employment contract unilateral termination and on the strictly fulfilment of clause 13.2 and 13.3 of the referred contract, I kindly inform that I will leave all the assets (Apartment and the vehicle) and they will be available from tomorrow on.

Kind Regards,”. The aftermath of the termination

18. On 10 November 2022, the coach inquired the FPF of the following: “I completed my UEFA A course in 2019 and last January 14th You forwarded the attached statement stating that my UEFA A License is valid until 31 December 2022.

However, even before the date of issuance of the aforementioned statement, I completed 26.5 hours of continuous UEFA training, as evidenced by the attached certificates. Does this mean that my UEFA A License is valid until 31 December 2025, can you confirm? This information is important to me, as if a new proposal arises to train abroad, I need to be sure that my UEFA A License is duly valid.”

19. On 14 November 2022, the club paid EUR 4,405.69 to the coach, equivalent to two salaries.

20. On 15 November 2022, the FPF replied to the coach as follows: “If you have completed the 15h UEFA required for the revalidation of the license, during the period 2019 and 2022, as evidenced by the certificates you present, the license is automatically renewed for the period of 2022-2025. You should file the certificates to present whenever necessary.” pg. 5

REF. FPSD-8530

21. On 23 March 2023 the FPF issued a certificate inter alia confirming that the coach had a UEFA A License valid until 31 December 2025.

22. The coach remained unemployed following the termination of the contract.

pg. 6

REF. FPSD-8530

II. Proceedings before FIFA

1. On 12 December 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties encompassing two rounds of submissions is detailed in continuation.

a. Position of the Claimant Jurisdiction

2. The Claimant submitted that the dispute is of international dimension and the Players’ Status Chamber (PSC) shall hear it based on art. 22 par. 1 lit. c) of the FIFA Regulations on the Status and Transfer of Players (RSTP). He equally argued that there is no clear or exclusive jurisdiction clause in the contract in favour of another body.

Substance

3. In his claim, the coach argued that the club terminated the contract without just cause and must compensate him accordingly. The coach argued that the club did not have any valid grounds to terminate the contract since he had started the relevant proceedings to obtain his new UEFA license. It is to be noted that the evidence filed by the Claimant only refers to UEFA

A License, not Pro.

4. The coach argued that his license situation has always been clear and in fact the termination was due to the fact that the club had perceived his performance as poor.

5. The coach requested EUR 31,200 as compensation for breach of contract plus interest of 5% p.a. as from October 2022 until “full payment”, as well as legal expenses. He highlighted that the contract does not have any reference to net amounts, only gross, which therefore should be considered for the calculation. The coach acknowledges the payment of EUR 4,405.69 made by the club in November 2022.

b. Position of the Respondent

6. The Respondent objected to the competence of FIFA as well as to the substance.

Jurisdiction

7. The Respondent argued that FIFA is not competent to hear the dispute, which must be solved by the competent local courts in Estonia. In support of this, the club submitted that the contract is governed by Estonian Law in line with its clause 15.3, and that any dispute arising from the

contract shall be resolved pursuant to the provisions of such law.

8. The club also submitted in this respect that Estonian law forbids that a dispute concerning the termination of an employment contract be resolved by a body other than the Estonian labour courts and provides that any agreement to the contrary is null and void. In doing so, the club drew a parallel between the present matter and previous precedents from FIFA and CAS pg. 7

REF. FPSD-8530 regarding the Spanish Royal Decree 1006/1985, and stated that the FIFA Commentary recognizes as follows: “In addition to a clear and explicit statement in a contract confirming that the parties wish any dispute to be heard before a civil court, any reference in the contract to specific national legislation establishing the competence of national employment tribunals can also be deemed to imply that employment-related cases will be heard outside of football’s decision-making structures”.

9. The club went on and highlighted that there is no provision under the contract to referring to the PSC or any other arbitration institution.

Substance

10. As to the substance, the club recalled the factual framework of the dispute and argued that the coach substantially breached the contract, rendering it impossible for the relationship to continue in that the coach failed to obtain his UEFA Pro License. The club recalled in this respect that it would face harsh consequences from the Estonian FA and UEFA in case it retained the coach’s services without him having the required license. In support of this, the club presented precedents from UEFA Club Financial Control Body (CFCB) and the relevant regulations from

the Estonian FA.

11. The club underlined that the obligation to obtain the relevant license rested entirely on the coach, and that he has presented no sufficient evidence of undertaking any steps towards doing so. In fact, the club submits that the coach only sought confirmation of his license status after the contract had already been terminated, which further denotes his reckless behaviour and negligence with that issue.

12. In continuation, the club stressed that the coach was perfectly aware of his impossibility to

continue rendering services to the club that he agreed to change the nature of his role at the club. The club equally underscored that it was the coach himself who requested the dismissal letter, as evidence by the messages exchanged between the parties.

13. The club equally argued that following the dismissal of the coach at his request, his e-mail denoted that he simply chose not to continue with any other projects with the club.

14. As a subsidiary argument, the club argued that it had just cause to terminate the contract, in that the coach’s negligence render it impossible for the parties’ relationship to continue in line with the principle of ultima ratio.

15. As another subsidiary argument, the club submitted that in case the PSC finds that the coach had not agreed to the termination of the contract, the coach shall not receive any compensation. The club is of the position that with his failure to obtain a new license, the coach materially breached the contract and was the main contributor to any damage it may have suffered. pg. 8

REF. FPSD-8530

16. Still more subsidiarily, the club submitted that in case compensation is to be awarded, clause 14.5 of the contract should be enforced and given the fact that the club already paid two salaries to him in November 2022, no additional amounts are due.

17. As a final subsidiary argument, in case the PSC is to calculate compensation payable to the coach on the basis of the RSTP, the following must be considered:

a. The residual amount of the contract equals EUR 24,560.64 net. b. The club already paid EUR 4,405.69, which leaves a balance of EUR 20,154.95 net, considering the salary of the coach as or EUR 2,046.72 net per month. c. The compensation should be reduced to zero since the coach materially breached the contract. pg. 9

REF. FPSD-8530

III. Considerations of the Players’ Status Chamber

a. Competence and applicable legal framework

1. First of all, the Single Judge of the Players’ Status Chamber (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 12 December 2022 and submitted for decision on 23 May 2023. Taking into account the wording of art. 34 of the March 2023 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.

2. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and observed that in accordance with art. 23 par. 2 in combination with art. 22 lit. c) of the RSTP (March 2023 edition), the PSC is in principle competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a coach from Portugal and a club from Estonia.

3. In this respect, the Single Judge noted that the Respondent contested the competence of FIFA’s deciding bodies in favour of the Estonian Courts, alleging that the latter are competent to deal with any dispute deriving from the relevant contract, in accordance with its clause 15.3. The Single Judge equally remarked that the Claimant insisted on the competence of FIFA to adjudicate the present claim, sustaining that the contract does not contain a clear and exclusive jurisdiction clause in favour of another body.

4. Considering the diverging positions of the parties, the Single Judge turned to the relevant clause of the contract, which reads as follows: “Disputes arising between the Coach and the Club from labour law are resolved with negotiations on the basis of this Contract, annexes to the Contract, documents regulating work procedure, other Club documents which extend to the Coach. If an agreement is not reached, then the disputes are resolved pursuant to the law of the Republic of Estonia.”

5. By examining the relevant clause, the Single Judge founds that it seems a choice of law clause rather than a jurisdiction one. Additionally, the Single Judge confirmed that said cluse is not sufficiently clear as which bodies would be competent to adjudicate on the matter under the relevant law. As such, the Single Judge set aside the argumentation of the Respondent and confirmed that FIFA has jurisdiction to hear the dispute.

6. 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 (March 2023 edition), and considering that the present claim was lodged on 12 December 2022, the October 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. pg. 10

REF. FPSD-8530

b. Burden of proof

7. 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 based on an alleged fact shall carry the respective burden of proof. Likewise, he 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). c. Merits of the dispute

8. The 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.

1. Main legal discussion and considerations

9. The foregoing having been established, the Single Judge moved to the substance of the matter, and took note of the fact that this is a claim of a coach against a club for breach of contract. The Single Judge also noted that as described in the relevant sections above, the parties have diametrically opposed positions as to the legality of the termination of the contract, and the consequences thereto.

10. As a departure point and considering the diverging positions of the parties as to the license, the Single Judge wished to recall that per art. 2 par. 4 Annexe 2 of the Regulations, holding a valid license cannot affect the validity of a coach contract. At the same time, he also recalled art. 4 par. 2 Annexe 2 of the Regulations, according to which “Any abusive conduct of a party aimed at forcing the counterparty to terminate or change the terms of the contract shall entitle the counterparty to terminate the contract with just cause.”

11. At the same time, Single Judge recalled the PSC’s long-standing jurisprudence, according to which only a breach or misconduct which is of a certain severity justifies the termination of a contract without prior warning. In other words, only when there are objective criteria which do not reasonably permit to expect the continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken for an employer to assure the employee’s fulfilment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only be an ultima ratio.

12. In continuation, the Single Judge outlined that it stems rather clearly from the file (and even as admitted by the club) that the latter was the one which prompted the coach to pursue a change in his coaching license from UEFA “A” to UEFA “Pro”. In fact, since the start of the relationship between the parties, it was clear that the license of the coach was a key issue in the pg. 11

REF. FPSD-8530 development of their employment relationship – even much to having contractual clauses referring to this issue despite the contents of art. 2 par. 4 Annexe 2 of the Regulations.

13. Irrespective of the said contractual arrangement however, the Single Judge underlined that the Regulations, in particular the spirit of its Annex 2, aims at providing a coach with a significant degree of protection in respect of the licenses required for him or her to perform a job with a club, in that holding a valid license (or mutatis mutandis, procuring a valid license) cannot affect the validity of the contract or equally affect the maintenance of the contractual stability between a coach and a club. The way that the Regulations are drawn points to a club’s necessary degree of diligence to engage a coach knowing, beforehand, the licensing criteria required, and putting a coach at the mercy of a club due to specific coach licensing regulations at domestic or continental level.

14. Therefore, the Single Judge found that any clause in the contract concerning the duty of the coach to obtain a new license is devoid of effect in the sense that it is against the Regulations.

By the same token, he found that the club engaged in a conduct which is contrary to the Regulations insofar it requested the coach to obtain a new license while knowing his previous status in this regard. In the Single Judge’s view, said conduct of the club represents an abusive one which aims at changing the contractual status of the coach, who therefore was put in a position of disadvantage, moreover due to the fact that it was the club’s primary task per the Regulations to ensure that the proper licensing required had been met a priori and not a posteriori.

15. The Single Judge also remarked that the behaviour of the club was inconsistent since they requested various licenses from the coach at different times, i.e., a type “A” license or a “Pro license”. In fact, based on the contents of the Termination Letter, the Single Judge was satisfied that the performance of the team, and the coach’s behavior towards the club’s board, rather

than license issue, was the triggering element for the termination of the contract by hand of the club, since in the correspondences that preceded the termination no relevant mention to the coach’s license was made. By the same token, the Single Judge noted that the Termination Letter dismisses the coach while outlining that an investigation will be conducted against him, which is contradictory per se.

16. Because of the above, the Single Judge remarked that it is immaterial to the dispute and the underlying contractual termination whether the coach requested or not a dismissal letter, because the club had already engaged in an abusive behavior contrarily to the Regulations, forcing a change of status of the coach vis-à-vis the contract. Consequently, the Single Judge found that there was no mutual termination of the contract, and the club terminated it without just cause.

17. Equally because of the above, the Single Judge remarked that the behavior of the coach cannot be considered as contributory to the termination of the contract since it was the club, from the very beginning, who wished that the coach obtained a new license in contravention of the

Regulations.

18. The club therefore shall endure the consequences that follow for such breach of contract. pg. 12

REF. FPSD-8530 ii. Consequences

19. 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 Respondent. In doing so, the Single Judge noted that (a) there is no outstanding remuneration in dispute, with the coach going as far as confirming in his statement of claim that the entire remuneration for the month of October 2022 has been paid and (b) the coach acknowledges a payment of EUR 4,405.69 in November 2022 made by the club.

20. In continuation, 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, he firstly recapitulated that,

in accordance with art. 6 par. 2 of Annexe 2 of the Regulations, the amount of compensation shall be calculated, 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.

21. In application of the relevant provision, the Single Judge held that it first had to clarify as to whether the pertinent 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 took note of the wording of clause 14.5 of the contract, which established as follows, and which the club deems should apply: “Taking into account the specifics of the Employer and the resulting peculiarities of the Employee’s work, the Parties agree that by signing this employment contract that the Employer has the exclusive right to terminate the Employment Contract after the first year, notifying the Employee at least (1) month in advance and in such case reimbursing the Employee for his two (2) months gross earnings.”

22. After analysing the content of the clause, the Single Judge concluded that it did not apply to the case at hand, since the club did not follow the proper steps established therein, namely the advance warning of one month. As such, the clause was of no relevance to the determination on the compensation due to the coach.

23. As a consequence, the Single Judge determined that the amount of compensation payable by the Claimant to the Respondent had to be assessed in application of the other parameters set out in art. 6 par. 2 of Annexe 2 of the Regulations. The Single Judge recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.

24. 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 until its term.

25. At this point, the Single Judge deemed important to clarify the issue of whether the amounts were payable net or gross to the coach. In this respect, the Single Judge deemed he could not pg. 13

REF. FPSD-8530 follow the coach’s assessment that the contract does not specify this issue as the same, even if written in English, textually reads “brutto”, i.e., gross. Given this and the fact that the coach acknowledges the payment of EUR 4,405.69 in November 2022 without any distinct issues, and equally claims no outstanding amounts (as for instance the balance for each monthly salary), the Single Judge decided to uphold the argumentation of the club and award the amounts net.

26. Considering that the club admits that the salary of the coach was EUR 2,046.72 net, the Single Judge concluded that the residual amount of the contract serves as the basis for the determination of the amount of compensation for breach of contract, minus the amounts already paid by the club in November 2022. Also, because the coach claims no outstanding amount and even confirmed in his claim that his salary of October 2022 was fully paid, said residual value is calculated from November 2022 until 10 November 2023, i.e., 12 times EUR 2,046.72 for a total of EUR 24,560.64 plus the pro-rata amount of EUR 682.24 for 10 days of November 2023, minus EUR 4,405.96 already paid. This arrives at EUR 20,837.19 as the residual value of the contract, net of taxes.

27. In continuation, the Single Judge verified 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 Single Judge as well as art. 6 par. 2 lit. b) of Annex 2 of the Regulations, 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.

28. In this respect, the Single Judge noted that the coach remained unemployed since the unilateral termination of the contract.

29. The Single Judge referred to art. 6 par. 2 lit. a) of Annex 2 of the Regulations, according to which, in case the coach did not sign any new contract following the termination of his previous contract, as a general rule, the compensation shall be equal to the residual value of the contract that was prematurely terminated.

30. By way of conclusion, the Single Judge decided to award the coach compensation for breach of contract in the amount of EUR 20,837.19, as the residual value of the contract.

31. Lastly, taking into consideration the coach’s request as well as the practice of the Football Tribunal 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 the termination, 16 October 2023, until the date of effective payment. iii. Compliance with monetary decisions

32. 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 its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned pg. 14

REF. FPSD-8530 party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

33. In this regard, the Single Judge highlighted that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid. The overall maximum duration of the registration ban shall be of up to three entire and consecutive registration

periods.

34. Therefore, bearing in mind the above, the Single Judge decided that the Respondent must pay the full amount due (including all applicable interest) to the Claimant within 45 days of notification of the decision, failing which, at the request of the Claimant, a ban from registering any new p