FIFA - Decisiones estatuto del jugador - Atteveld 13092022

REF FPSD-6735

Decision of the Players’ Status Chamber passed on 13 September 2022 regarding an employment-related dispute concerning the coach Raymond Atteveld BY: Louis Everard, Single Judge

CLAIMANT:

Raymond Atteveld, the Netherlands Represented by Nir Inbar Sports Law

RESPONDENT:

Hapoel Rishon Lezion, Israel Page 2

REF FPSD-6735

I. Facts of the case

1. On 21 November 2021, the Dutch coach, Raymond Atteveld (hereinafter: the Claimant), and the Israeli club, Hapoel Rishon Lezion (hereinafter: the Respondent) signed an employment contract (hereinafter: the Contract) valid as from said date until 31 May 2022.

2. In accordance with Clause 2.1 of the Annex to the Contract, the Respondent undertook to pay to the Claimant inter alia NIS 172,850 gross (Israeli Shekels), divided into 5 equal instalments of NIS 34,570, each to be paid before the 10th day of each month.

3. Furthermore, according to Clause 2.2 of the same Annex to the Contract, the Respondent undertook to pay the Claimant an additional one-time fee of NIS 5,500 gross due on or before 31 May 2022.

4. Lastly, pursuant to Clause 2.3 of the Annex and according to Clause 6b (4) of the Israeli FA Form and the relevant appendix "A" signed by the Claimant contextually to the Contract: “the Club shall comply with its obligations to distribute from the gross amounts Pension, Social Security and health insurance payments as required by the Income Tax and Social Security authorities - regarding to foreigner employees, fully and timely as stipulated by law”.

5. By correspondence dated 29 December 2021, the Respondent communicated the unilateral termination of the Contract to the Respondent.

6. On 1 May 2022, the Claimant put the Respondent in default of NIS 109,210 as compensation and granted 15 days in order to remedy the breach.

II. Proceedings before FIFA

7. On 17 July 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Position of the Claimant

8. In his claim, the Claimant accused the Respondent of having terminated the Contract prematurely and without just cause on 29 December 2021.

9. Accordingly, the Claimant referred of several attempts, conducted by phone and email, to obtain a compensation from the Respondent after the termination of the

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Contract, namely because the latter had failed to comply with its financial obligations after the mentioned event.

10. In this respect, the Claimant lamented about the total indifference shown by the Respondent who allegedly ignored every attempt from the Claimant to establish a communication and left the latter with no other choice but to seek for remedies before FIFA.

11. Accordingly, the Claimant requested a compensation of NIS 133,980 corresponding to the following unpaid sums: - NIS 24,770 as pension contributions - NIS 103,710 as salaries for the months of March, April and May 2022 - NIS 5,500 as one-time fee originally due on or before 31 May 2022 - 5% interest per annum on the relevant amounts running as from the respective due dates

b. Position of the Respondent

12. Despite being invited to do so, the Respondent did not reply to the claim.

III. Considerations of the Players’ Status Chamber

a. Competence and applicable legal framework

13. 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 17 July 2022 and submitted for decision on 13 September 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.

14. 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. b) of the Regulations on the Status and Transfer of Players (July 2022), the Players’ Status Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Dutch coach and an Israeli club.

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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 Players (July 2022), and considering that the present claim was lodged on 17 July 2022, the July 2022 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. 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).

c. Merits of the dispute

17. 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

18. The foregoing having been established, the Single Judge moved to the substance of the matter and took note of the fact that on 21 November 2021 the Claimant and the Respondent concluded an employment agreement to be valid until 31 May 2022.

19. Subsequently, the Single Judge observed that the Claimant lodged a claim before FIFA for breach of contract without just cause by the Respondent, arguing that the latter unilaterally terminated the Contract on 29 December 2021.

20. In this context, the Single Judge noted that the Respondent failed to present its response to the claim of the Claimant, in spite of having been invited to do so. By not presenting its position to the claim, the Single Judge was of the opinion that the Respondent renounced its right of defence and, thus, accepted the allegations of the

Claimant.

21. Consequently, after having thoroughly analysed the submission of the Claimant as well as the documentation at his disposal, the Single Judge deemed that the first

Page 5 REF FPSD-6735 question to be addressed in the present matter was whether the Respondent had terminated the contract with or without just cause on 29 December 2021.

22. In this respect, the Single Judge referred to his well-established jurisprudence and emphasised that, as a general rule, only a breach or misconduct which is of a certain severity justifies the termination of a contract without notice. In other words, only when there are objective criteria which do not reasonably permit to expect a

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 in order for an employer to ensure 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 ever be an ultima ratio measure.

23. In this context, the Single Judge acknowledged that, since the Respondent failed to provide its reasons as with regard to the grounds for the termination, this shall be deemed as having occurred without just cause. ii. Consequences

24. 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.

25. Nevertheless, before entering the analysis of the consequences of the unjust termination of contract on the part of the club, the Single Judge deemed it appropriate to first assess whether any outstanding remuneration was still due by the club to the coach.

26. In this respect, the Single Judge noted that, in line with the default letter dated 1 May 2022, the Claimant only demanded the payment of amounts which had become due after the termination of the Contract occurred on 29 December 2022.

27. As a consequence, the Single Judge established that no outstanding sums subsist at the current date and the Respondent shall pay compensation only.

28. 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 art. 6 par. 2 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

Page 6 REF FPSD-6735 existing contract and/or the new contract and the time remaining on the existing

contract.

29. In application of the relevant provision, the Single Judge held that it 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.

30. 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.

31. As a consequence, the Single Judge determined that the amount of compensation payable by the club to the coach had to be assessed in application of the parameters set out in art. 6 par. 2 of Annexe 2 of the Regulations.

32. 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. Consequently, the Single Judge concluded that the amount of NIS 133,980 (i.e. unpaid salaries due for March, April and May 2022 + pension contributions + one-time fee) serves as the basis for the determination of the amount of compensation for breach of contract.

33. 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.

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

35. 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.

36. In this respect, the Single Judge decided to award the coach compensation for breach of contract in the amount of NIS 133,980 as the residual value of the contract.

37. Lastly, taking into consideration the coach’s request as well as the constant practice of the Single Judge in this regard, the latter decided to award the coach interest on

Page 7 REF FPSD-6735 said compensation at the rate of 5% p.a. as of the date of the claim, i.e. 17 July 2022, until the date of effective payment. iii. Compliance with monetary decisions

38. 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 party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

39. 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.

40. 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 players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become immediately effective on the Respondent in accordance with art. 8 par. 2, 4, and 7 of

Annexe 2 of the Regulations.

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

42. The Single Judge recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 8 par. 8 of Annexe 2 of the Regulations.

d. Costs

43. 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.

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44. 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.

45. 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, Raymond Atteveld, is accepted.

2. The Respondent, Hapoel Rishon Lezion, has to pay to the Claimant, the following amount:  133,980 NIS (New Israel Shekel) gross as compensation for breach of contract without just cause plus 5% interest p.a. as from 17 July 2022 until the date of effective payment.

3. Full payment (including all applicable interest) shall be made to the bank account indicated in the enclosed Bank Account Registration Form.

4. 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 banned from registering any new players, either nationally or internationally, up until the due amount is paid. The maximum duration the ban shall be of three entire and consecutive registration periods.

2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in the event that full payment (including all applicable interest) is still not made by the end of the three entire and consecutive registration periods.

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

6. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero

Chief Legal & Compliance Officer Page 10

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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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