FIFA - Decisiones estatuto del jugador - Bianchi Pelliser 23052023

REF. FPSD-9738

Decision of the Players’ Status Chamber passed on 23 May 2023 regarding an employment-related dispute concerning the coach Roberto Luiz Bianchi Pelliser BY: Oleg ZADUBROVSKIY (Russia)

CLAIMANT: Roberto Luiz Bianchi Pelliser, Spain Represented by Mr Nicolás Felipe Senderowicz Slucki & Ms Rosalía Ortega

RESPONDENT:

Vipers SC, Uganda pg. 2

REF. FPSD-9738

I. Facts of the case

1. On 3 January 2023, Mr Roberto Luiz Bianchi Pelliser and Vipers SC concluded an employment contract valid as from the date of signature and “for one and a half years” (i.e. until 30 June 2024).

2. According to art. 6 of the contract, the coach was entitled to USD 6,000 net per month to be paid within the first 5 days of each month.

3. Art. 3 of the contract stipulated the following: “Article 3: Contract expiration and /or termination Within three months to the end of this contract both parties will come together to table a possibility of renewing this contract on the same terms or with new terms if agreed upon.

Either party may terminate this contract with just cause by the provision of two month's prior written notice to the other party or payment in lieu of such notice.”

4. Following art. 5 of the contract, the coach was “entitled to a return air Ticket to his home country

(Spain) once a year.”

5. On 21 February 2023, the club sent a notice to the coach for “unbecoming conduct”, indicating the following: “In a Technical Committee meeting held on 20th February 2023 called to address the recurring loses, you arrived late while fuming in Spanish (…). I believe this was insubordination.

Your responses on Viper players sounded offensive (…) You called them none professionals and yet they

are the same players who eliminated the Africa giants TP Mazembe and Real de Bangui (…). The accusation caused a huge rift among the players particularly the foreigners. Amazingly with all your expertise, you have failed to manage players on the dress code, time management and you were excessively rude. Intolerable arrogance, gesture and threats while on the bench were noticed (…)”

6. On 27 February 2023, the club sent a new notice, indicating that the “growing indiscipline of players, poor time management and divisions have led to poor results”, and complained on the “abominable body language” of the coach.

7. On 8 March 2023, the club sent another notice for “intolerable behaviour”, indicating that, “on 7th March 2023 while in Tanzania, the leader of the Delegation realized that the morale of the team was extremely low - there was division and disorder among players and the Head Coach”, while noting that “even if he is fired and the Club hired Morihno or Gordiola, the team cannot produce any sensible results.”

8. Also on 8 March 2023, the club sent a termination letter to the coach with the following contents: “You are hereby notified that by decision of the Executive and Vipers Management that you are forthwith relieved of your duties as Head Coach Vipers SC in accordance with Article 3(Bullet 2) of your contract for non-satisfactory performance and not living to the Employer's expectations. pg. 3

REF. FPSD-9738

That Management has decided that you shall be paid two month's salary in lieu of notice as per your contract plus computed salary for the 8 days worked for the month of March 2023. In that respect, the termination takes immediate effect and you will be required to hand over all Club property within your possession to the CLUB CEO by the close of business 10th March 2023 and all payments due to you as per the contract above shall be paid within the same time frame.

We assure you of our utmost considerations and wish you the best in your future endeavors. We remain "One Team. One Dream"

9. The coach informed FIFA that he remained unemployed.

II. Proceedings before FIFA

10. On 24 March 2023, the coach lodged a claim before the FIFA Football Tribunal for breach of contract without just cause and requested the payment of the following amounts: - USD 90,000 as compensation and corresponding to the residual value of the contract; - EUR 1,250, for an air ticket to return to Spain. In support of this request, the coach provided a copy of a reservation dated 10 March 2023, for the journey Entebbe – Amsterdam – Madrid, with departure at 23:50h on 11 March 2023, for the price of EUR 1,250; USD 18,000, as compensation for bad faith, moral damages and specificity of sports.

11. In its reply, the club argued that the termination of the contract was lawful, as it was in accordance with Clause 3 and 4 of the employment contract and the Ugandan Labour Laws.

12. The club argued that the FIFA Regulations are not applied in absolute isolation of other applicable laws in determining employment disputes between a club and a coach, as there are other relevant factors to be considered, such as the law of the country where the contract was executed.

13. According to the club, the coach was cautioned for the use foul and abusive language against fellow coaches, players and staff, insubordination, poor time management, failure to manage dressing room, division among players and lack of team play which was affecting the team spirit and creating a toxic working environment.

14. The Respondent further argued that it paid for a return air ticket for the coach to Spain on his arrival at the club in January and a one-way air ticket from Entebbe to Spain upon termination. The club provided a copy of an air ticket for the journey Madrid-Entebbe (via Cairo), from 9 January 2023 and return on 3 April 2023 (issued on 3 January 2023), as well as a copy of another ticket for return on 11

March 2023.

15. The club provided a copy of the following receipts: - USD 12,000, “general payment voucher” for “Salary Feb & Mar”. The document is apparently signed by the coach. - USD 6,000, “general payment voucher” for “Salary Jan”. The document is apparently signed by the coach. - USD 12,000: “Application for Foreign Currency Transaction”, for the payment of “Professional Fees / Two Months Salary”, to be paid to the bank account of the coach in Spain. Dated 9 March 2023 pg. 4

REF. FPSD-9738

16. In his replica, the Claimant rejected the allegations of the club.

17. The Claimant argued that he was not granted with an opportunity to explain himself before the dismissal.

18. The coach argued that the reasons behind the termination should have been exposed in the termination letter, and not ex novo, once proceedings have been opened.

19. The coach denied having received any notification prior to his dismissal, and argued that the club never complained about his work, either in writing or orally.

20. As to the team’s performance, the coach argued that this does not constitute just cause for termination. However, he wished to underline that “ in the short time he was allowed to serve as the club's coach, he played only one league game (…)”.

21. The coach argued that he could not use the air tickets since he was brought to the airport two hours after the departure of the flights (note: copy of WhatsApp conversation on file).

22. In its duplica, the Respondent insisted in its previous position.

23. In particular, the Respondent underlined that, following clause 3 of the contract, either party to the contract could on just cause terminate the contract by provision of a two months' notice or payment in lieu of the notice.

24. The Respondent referred to the Ugandan Employment Act, 2006, and explained that following its section 71(1), for an Employee to have locus to complain on cases of unfair termination, he or she

must have been in continuous employment for thirteen weeks (3 months plus) or more at the time of termination, which was not the case.

25. The Respondent insisted that it sent different warnings to the coach.

26. The club reiterated that the coach did not leave to the employer's expectations a due to toxic working environment, insubordination of supervisor, lack of team spirit with other technical staff or the players.

27. As to the air tickets, the club argued that the coach had become uncooperative and had refused to take it “for reasons best known to him.” pg. 5

REF. FPSD-9738

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 or 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 and submitted for decision on .

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. 1 in combination with art. 22 lit. c) of the Regulations on the Status and Transfer of Players (March 2022 edition), 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 coach from Spain and Brazil and a club from Uganda.

3. 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 24 March 2023, the March 2023 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. b. Burden of proof

4. 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 it 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

5. 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 it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

1. Main legal discussion and considerations pg. 6

REF. FPSD-9738

6. The Single Judge then moved to the substance of the matter. In doing so, he acknowledged that the parties concluded an employment contract valid as from the date of signature and “for one and a half years” (i.e. until 30 June 2024). The Judge then noted that the Claimant lodged a claim before FIFA, arguing that, on 8 March 2023, the club served him a termination letter, after apparently serving several default notices since 21 February 2023.

7. In this respect, the Judge first noted that the coach argued that he never received said default

notices.

8. In relation to this issue, the Judge noted that, after verifying the information on file, that there is no transmission report and therefore there is no direct evidence on whether said default notice were sent. However, the Single Judge also noted that said notices, as available on file, have a similar format to the termination letter, which the coach acknowledged having received. Therefore, the Single Judge could only assume that the coach indeed received the default notices.

9. However, in a more relevant manner, the Single Judge understood that the fundamental legal issue that he had to analyse was whether the club had a just cause to unilaterally terminate the contract on 8 March 2023.

10. In doing so, the Single Judge recalled the contents of the letter of 8 March 2023, and observed, based on its contents, that the club terminated the contract due its dissatisfaction with the performance of the coach.

11. In particular, the Single Judge also observed that the club accused the coach of creating a climate of insubordination that led to poor sporting performance. However, after duly examining the documentation on file, the Single Judge observed that the club has failed to provide specific evidence to support these allegations.

12. The Single Judge then observed that, in the termination letter, the club stated that the dismissal was “for non-satisfactory performance and not living to the Employer's expectations.”

13. In the view of the Judge, however, expressions “not living to the employer’s expectations” appear to be vague and imprecise.

14. Within this context, the Single Judge deemed pertinent to recall that, in accordance with the longstanding jurisprudence of the Football Tribunal, sporting team results / sporting team performance cannot be retained as a valid reason to justify an early termination of an employment contract.

15. For the sake of completeness, the Judge also noted that, according to the club, the unilateral termination of the contract was performed in line with local law. However, as to the use of said national rules, the Single Judge wished to underline that his regulatory basis as a decision-making

body refers to is the FIFA Regulations on the Status and Transfer of Players. The Single Judge further pg. 7 REF. FPSD-9738 observed that, in any case, the parties did not submit a complete copy of the applicable national law.

16. As a result, the Single Judge concluded that the termination of the contract was without just cause and the coach is entitled to compensation. ii. Consequences

17. 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.

18. Yet, before entering into the calculation of the possible compensation, the Single Judge also wished to analyse the Claimant’s request for the reimbursement of air tickets that he paid in order to return to Spain.

19. In relation to said tickets, the Single Judge noted that the club provided evidence that said tickets were in fact provided to the coach, and as a result, no reimbursement is due.

20. However, the Judge noted that, according to the coach, said tickets were given too late and therefore he could not take the relevant flight. The Judge noted that, apparently, the flight departed on 11

March at 04:15, whereas the flight tickets were given on 11 March at 6:18.

21. In relation to said issue, the contract stipulated that the coach was entitled to a “return ticket”, and noted that, in reality, said return ticket was already provided at the beginning of the contract (cf. point I. 14 above, in reference to the ticket to return on 3 April 2023 (issued on 3 January 2023)).

Thus, the Single Judge understood that the club already complied with its basic obligation on 3 January 2023, and as a result, the disputed ticket for 11 March 2023 shall be considered as an additional ticket that goes beyond what was contractually agreed between the parties. The Single Judge therefore decided to reject this part of the claim of the coach.

22. 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 of the Annexe 2 of the Regulations and the jurisprudence of the Football Tribunal, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, the specificity of sport and further objective criteria, including in particular, the remuneration and other benefits due to the coach under the existing contract and/or the new contract, the time remaining on the existing contract.

23. 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 by the contractual parties in the event of breach of contract. pg. 8

REF. FPSD-9738

24. In this regard, the Single Judge noted that the contract included a compensation clause, indicating the following: “Either party may terminate this contract with just cause by the provision of two month's prior written notice to the other party or payment in lieu of such notice.”

25. After duly analysing its contents, the Single Judge understood that the clause corresponds to a liquidated damages clause. The Single Judge also observed that said clause appears to be fully reciprocal, as it grants the same rights to either part, and therefore must be considered as valid and binding.

26. On this basis, the Single Judge confirmed that the parties agreed upon the payment of two months of salaries as compensation. Moreover, the Judge also noted that, according to the club, the corresponding amount was settled.

27. In relation to said payment, the Single Judge observed that the club provided evidence of having applied to a payment of USD 12,000 (i.e. 6,0002) to a Spanish bank account apparently belonging to the coach. The Single Judge noted that this bank corresponds to the same institution as the one

listed in the Bank Account Registration Form that was submitted with his claim.

28. Moreover, the Single Judge observed that the coach did deny said payment in his replica. Therefore, the Single Judge understood, based on the evidence on file, that the club effectively paid two monthly salaries as compensation, as freely and mutually agreed between the parties.

29. As a result, the Single Judge established that no compensation is currently due insofar it was already settled by the Respondent.

30. Moreover, in accordance with the longstanding jurisprudence of the Football Tribunal, the Single Judge rejected the Claimant’s request for “moral damages” due to a lack of legal basis and evidence.

d. Costs

31. 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.

32. 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.

33. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief made by any of the parties. pg. 9

REF. FPSD-9738

IV. Decision of the Players’ Status Chamber

1. The claim of the Claimant, Roberto Luiz Bianchi Pelliser, is rejected.

2. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 10

REF. FPSD-9738

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 Governing the Football Tribunal).

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 pg. 11