Decision of the Single Judge of the Players Status Committee

Transcription

1 Decision of the Single Judge of the Players Status Committee passed in Zurich, Switzerland, on 24 November 2015, by Geoff Thompson (England) Single Judge of the Players Status Committee, on the claim presented by the coach Coach A, country B as Claimant against the club Club C, country D as Respondent regarding a contractual dispute arisen between the parties.

2 I. Facts of the case 1. On 1 October 2010, the coach from country B, Coach A (hereinafter: the Claimant ) and the club from country D, Club C (hereinafter: the Respondent ) concluded an employment contract (hereinafter: the contract ), valid from 1 October 2010 until 30 June On the same date, the Claimant and the Respondent concluded an annex to the contract (hereinafter: the Annex ), according to which the Claimant was entitled to receive from the Respondent the following fixed and variable salaries: Fixed Salary EUR 4,000,000 net per football season (including the residual part of the season 2010/2011), giving a net total amount of EUR 16,000,000 for the complete term of the contract. Such salary shall be paid by the Respondent to the Claimant in monthly instalments, payable on the first calendar day of each month according to the following payment schedule: EUR 444, from October 2010 until June 2011; EUR 333, from July 2011 until June 2012; EUR 333, from July 2012 until June 2013; EUR 333, from July 2013 until June Variable Salary (Bonus) (1) EUR 1,000,000 in the event the Respondent would win the Premier League of country D; (2) EUR 500,000 in the event the Respondent would qualify to the UEFA Champions League (including qualifying rounds); (3) EUR 500,000 in the event the Respondent would qualify to the UEFA Champions League (group stage) in addition to point (2); (4) EUR 500,000 in case the Respondent would win the Cup of country D; (5) EUR 500,000 in case the Respondent would qualify to the UEFA Europa League (group stage). (6) Season 2010/2011: the Claimant will receive from the Respondent twice of the amounts indicated above. 3. On 5 December 2014, the Claimant lodged a claim in front of FIFA against the Respondent requesting the total amount of EUR 2,600,000, plus 5% interest p.a. as from the due dates as well as procedural costs. The cited amount was composed as follows: -EUR 600,000 as fixed salaries and -EUR 2,000,000 as variable salaries. 4. In particular, the Claimant stated that at the end of May 2014, both parties agreed that at the expiry of the contract the Claimant would leave the Respondent. The Claimant explained to have continued to perform his duties as a coach at the club until 19 July Coach A, country B / Club C, country D 2

3 5. Furthermore, the Claimant alleged that, despite the good relationship with the Respondent, the latter did not pay him part of the last two monthly fixed salaries amounting to EUR 600,000, corresponding to the months of May and June 2014 (i.e. EUR 300,000 each). 6. The Claimant further explained that, as a general rule, part of his fixed salaries were paid by the Respondent in Switzerland (EUR 300,000) and the rest in country D (EUR 33,333). 7. Consequently, the Claimant requested the fixed salaries of EUR 600,000, plus 5% interest p.a. as from the due dates, i.e. over the sum of EUR 300,000 as from 1 June 2014 and over the amount of EUR 300,000 as from 1 July 2014 respectively. 8. With regard to the variable salaries, the Claimant stated that he was entitled to receive the total amount of EUR 2,000,000, as follows: (1) EUR 500,000 for the qualification of the Respondent to the group stage of the UEFA Europa League 2012/2013, plus 5% annual interest as from 30 August 2012 (date of the qualification to the group stage of the UEFA Europa League 2012/2013); (2) EUR 500,000 for the qualification of the Respondent to the group stage of the UEFA Europa League 2013/2014, plus 5% annual interest as from 29 August 2013 (date of the qualification to the group stage of the UEFA Europa League 2013/2014); (3) EUR 500,000 for the qualification of the Respondent to the UEFA Champions League 2014/2015 since the Respondent finished at the 2 nd position in the League of country D, plus 5% annual interest as from 30 June 2014 (date of the direct qualification to the UEFA Champions League 2014/2015); (4) EUR 500,000 for the qualification of the Respondent to the group stage of the UEFA Europa League 2014/2015, plus 5% annual interest as from 28 August 2014 (date of the qualification to the group stage of the UEFA Europa League 2014/2015). 9. In particular, the Claimant explained that he was entitled to receive the bonuses claimed in the point 9. (4) of the present document even though he was no longer rendering his services for the Respondent. The Claimant further alleged that the Respondent did reach the group stage of the UEFA Europa League 2014/ In spite of having been asked to do so, the Respondent did not provide its response to the Claimant s claim. II. Considerations of the Single Judge of the Players Status Committee 1. First of all, the Single Judge of the Players Status Committee (hereinafter also referred to as: the Single Judge ) analysed whether he was competent to deal with the matter at hand. In this respect, he took note that the present matter was Coach A, country B / Club C, country D 3

4 submitted to FIFA on 5 December Consequently, the Single Judge concluded that the 2014 edition of the Rules Governing the Procedures of the Players Status Committee and the Dispute Resolution (hereinafter: the Procedural Rules ) is applicable to the matter in hand (cf. art. 21 of the Procedural Rules). 2. Furthermore and with regard to his competence, the Single Judge confirmed that, on the basis of art. 3 par. 1 of the Procedural Rules in connection with art. 23 par. 1 and 3 as well as art. 22 c) of the 2015 edition of the Regulations on the Status and Transfer of Players, he was competent to deal with the present matter since it concerns an employment-related dispute with an international dimension between a coach from country B and an club from country D. 3. Subsequently, the Single Judge analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with the art. 26 par. 1 and 2 of said Regulations (edition 2015) and taking into account the fact that the present claim was lodged with FIFA on 5 December 2014, the 2014 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations ) is applicable to the case at hand as to the substance. 4. His competence and the applicable regulations having been established, the Single Judge entered into the substance of the matter and started by acknowledging the above-mentioned facts as well as the arguments provided by the parties and the documentation contained in the file. 5. In this respect, the Single Judge first observed that the Respondent had never submitted its position to the claim lodged against it by the Claimant, despite having been asked to do so by FIFA. Therefore, the Single Judge concluded that, in this way, the Respondent had renounced to its right of defence and, thus, it had to be assumed that it had accepted the allegations of the Claimant. 6. Bearing in mind the aforementioned, the Single Judge referred to art. 9 par. 3 of the Procedural Rules and pointed out that in the present matter a decision shall be taken upon the basis of the documents on file, in other words, upon the allegations and documents submitted by the Claimant. 7. Having said this and to start with, the Single Judge took note that on 1 October 2010 the Claimant and the Respondent concluded the contract which was valid until 30 June Moreover, the Single Judge acknowledged that the said parties concluded the Annex on the same date, i.e. on 1 October At this stage, the Single Judge pointed out that the Claimant had lodged the present claim with FIFA against the Respondent requesting the payment of the amount of EUR 600,000 as outstanding salaries corresponding to the months of Coach A, country B / Club C, country D 4

5 May and June 2014 as well as the sum of EUR 2,000,000 as bonuses (i.e. variable salaries ). 10. Having said this, the Single Judge started to focus his attention to the Claimant s request for the sum of EUR 600,000 as outstanding salaries. 11. In this context, the Single Judge deemed appropriate to reiterate that, during the investigation of the matter at stake, the Respondent did not provide with its position to the claim lodged against it and, therefore, it has to be assumed that it did not contest any of the allegations or documentary evidence provided by the Claimant. 12. In view of of the above, the Single Judge decided that, in accordance with the general principle of pacta sunt servanda which in essence means that agreements must be respected by the parties in good faith, the Respondent must fulfil the obligations it voluntarily entered into with the Claimant by means of the contract and the Annex. 13. Therefore, the Single Judge concluded that the Respondent should pay to the Claimant the monthly salary of May 2014 amounting to EUR 300,000 as well as the monthly salary of June 2014 amounting to EUR 300, In addition, the Single Judge took note that the Claimant had requested interest over the outstanding amounts. 15. Therefore, the Single Judge deemed appropriate to grant interest at a rate of 5% per annum over the two monthly salaries as follows: over EUR 300,000 as from 2 June 2014 until the effective date of payment and over EUR 300,000 as from 2 July 2014 until the effective date of payment. 16. In continuation, the Single Judge turned his attention to the Claimant s request for EUR 2,000,000 representing bonuses (i.e. variable salaries ). 17. In doing so, the Single Judge analysed the Claimant s request for the amount of EUR 500,000 for the alleged qualification of the Respondent to the group stage of the UEFA Europa League 2012/ In this regard, the Single Judge took note that the fact given rise to the dispute occurred on 30 August 2012, date in which the Respondent s team won against the team from country E, Club F and qualified to the group stage of the UEFA Europa League 2012/ In this context, the Single Judge was keen to emphasise the content of the art. 25 par. 5 of the Regulations which states that the competent FIFA deciding bodies shall not hear any dispute if more than two years have elapsed since the event giving rise to the dispute occurred. Coach A, country B / Club C, country D 5

6 20. Therefore, the Single Judge concluded that taking into account that the Claimant lodged the present claim in front of FIFA against the Respondent on 5 December 2014, i.e. more than 2 years after the amount of EUR 500,000 was effectively due, this part of the Claimant s claim is time-barred. 21. Having established the aforementioned, the Single Judge went on to address the Claimant s request for the amount of EUR 500,000 for the qualification of the Respondent to the group stage of the UEFA Europa League 2013/ In this regard, considering that it remained undisputed that the Respondent qualified to the group stage of the UEFA Europa League 2013/2104, the Single Judge decided that the Claimant was entitled to receive from the Respondent the amount of EUR 500,000 as bonus for the qualification of the Respondent s team to the group stage of the UEFA Europa League 2013/ Moreover, the Single Judge took note that the Claimant had requested an annual interest of 5% from 29 August 2013, date in which the Respondent qualified to the group stage of the UEFA Europa League 2013/2014. In this regard, the Single Judge decided to grant interest at a rate of 5% per year over the bonus amounting to EUR 500,000 from 29 August 2013 until the date of effective payment. 24. In continuation, the Single Judge turned his attention to the Claimant s request for the bonus amounting to EUR 500,000 for the direct qualification of the Respondent to the UEFA Champions League 2014/ in this respect, taking into account that it remained uncontested that the Respondent did qualify to the UEFA Champions League 2014/2015, the Single Judge decided that the Respondent owed the Claimant the amount of EUR 500,000, plus an annual interest of 5% from 30 June 2014, i.e. date of the end of the football season in country D, until the date of effective payment. 26. Finally, the Single Judge went to address the Claimant s request for a sum of EUR 500,000 for the qualification of the Respondent s to the group stage of the UEFA Europa League 2014/ In this regard, the Single Judge acknowledged that the Respondent obtained its qualification to the group stage of the UEFA Europa League 2014/2015 after having won against the club from country G, Club H on 28 August In this context, the Single Judge emphasised that according to a well-established jurisprudence of the Players Status Committee, performance bonuses should be granted to coaches only if the employee, i.e. the coach, was still performing his duties as coach to the employer at the time the bonus was due. Coach A, country B / Club C, country D 6

7 29. Therefore, considering that the Claimant confirmed having stopped performing his duties as a coach of the Respondent on 19 July 2014 as well as taking into account that the Respondent qualified to the group stage of the UEFA Europa League on 28 August 2014, the Single Judge concluded this part of the Claimant s request is rejected. 30. In view of all the above-mentioned considerations, the Single Judge decided that the claim of the Claimant is partially accepted and that the Respondent has to pay to the Claimant the amount of EUR 600,000 as outstanding salaries plus the respective interests as well as the amount of EUR 1,000,000 as outstanding bonuses plus the respective interests. 31. Finally, the Single Judge referred to art. 25 par. 2 of the Regulations in combination with art. 18 par. 1 of the Procedural Rules, according to which in the proceedings before the Players Status Committee costs in the maximum amount of CHF 25,000 are levied. The costs are to be borne in consideration of the parties degree of success in the proceedings and are normally to be paid by the unsuccessful party. 32. Considering that, in the case in hand, the Claimant s claim was partially accepted and taking into account the particular circumstances of the present matter, the Single Judge concluded that both parties have to bear the costs of the current proceeding before FIFA. 33. According to Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute. The amount in dispute to be taken into consideration in the present proceedings is over CHF 200,000. Therefore, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25, In view of the above, the Single Judge determined the costs of the current proceedings to the amount of CHF 20,000 and held that such costs have to be paid as follows, CHF 7,000 by the Claimant and CHF 13,000 by the Respondent. 35. Consequently, taking into account that the Claimant has already paid the amount of CHF 5,000 as advance of costs at the beginning of the present procedure, the Single Judge decided that the latter must pay the remaining amount of CHF 2,000 to FIFA and that the Respondent must pay the amount of CHF 13,000 to FIFA in order to cover the costs of the present proceedings. Coach A, country B / Club C, country D 7

8 III. Decision of the Single Judge of the Players Status Committee 1. The claim of the Claimant, Coach A, is partially accepted. 2. The Respondent, Club C, has to pay to the Claimant, Coach A, within 30 days as from the date of notification of this decision, the following outstanding remuneration : EUR 300,000 as outstanding salary corresponding to the month of May 2014 as well as 5% annual interest from 2 June 2014 until the date of effective payment; EUR 300,000 as outstanding salary corresponding to the month of June 2014 as well as 5% annual interest from 2 July 2014 until the date of effective payment; EUR 500,000 as bonuses plus 5% annual interest from 29 August 2013 until the date of effective payment; EUR 500,000 as bonuses plus 5% annual interest from 30 June 2014 until the date of effective payment. 3. If the aforementioned sums, plus interest as provided above, are not paid within the aforementioned deadline the present matter shall be submitted, upon request, to FIFA s Disciplinary Committee for consideration and a formal decision. 4. Any further claims lodged by the Claimant, Coach A, are rejected. 5. The final costs of the proceedings in the amount of CHF 20,000 are to be paid by both parties, within 30 days as from the date of notification of the present decision, as follows: 5.1 The amount of CHF 7,000 has to be paid by the Claimant, Coach A. Taking into account that the latter has already paid the amount of CHF 5,000 as advance of costs at the beginning of the present procedure, the Claimant, Coach A, should pay to FIFA the remaining amount of CHF 2,000 as procedural costs. 5.2 The amount of CHF 13,000 has to be paid by the Respondent, Club C, to FIFA. 5.3 The above-mentioned amounts indicated in points 5.1 and 5.2 of the present findings should be paid to the following bank account with reference to case nr. xxxxxxxxxxxx: UBS Zurich Account number U (FIFA Players Status) Clearing number 230 IBAN: CH U SWIFT: UBSWCHZH80A 6. The Claimant, Coach A, is directed to inform the Respondent, Club C, immediately and directly of the account number to which the remittance under point 2. above Coach A, country B / Club C, country D 8

9 is to be made and to notify the Players Status Committee of every payment received. ***** Note relating to the motivated decision (legal remedy): According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont Lausanne Switzerland Tel: Fax: info@tas-cas.org For the Single Judge of the Players Status Committee Marco Villiger Deputy Secretary General Encl. CAS directives Coach A, country B / Club C, country D 9