Labour Disputes
Texto da decisão
Decis ion of the S ingle Judge
of the Play ers ’ S tatus Com m ittee
passed in Zurich, Switzerland, on 22 January 2020,
by
Roy Verm eer (the Netherlands)
Single Judge of the Players’ Status Committee,
on the claim presented by the coach
Pablo Adrian Guede, Argentina
Represented by Ms Melanie Schärer
as Claimant
against the club
Al-Ahli S audi FC, Saudi Arabia
as Respondent
regarding a contractual dispute arisen between the parties
I.
Facts of the cas e
1.
On 14 May 2018, the Argentinian coach, Mr Pablo Adrian Guede (hereinafter: the
coach or the Claimant) concluded an employment contract (hereinafter: the contract)
with the Saudi club, Al-Ahli Saudi FC (hereinafter: the club or the Respondent) valid
as from 20 June 2018 until 19 June 2020, pursuant to which he was entitled, inter
alia, to an advance of payment of USD 1,800,000 and a monthly salary of USD
200,000.
2.
According to the contract, “the Assistant Head Coaches’ monthly salaries will be the
sole responsibility of the [Claimant]”. Moreover, art. 4.B of the contract stipulated as
follows:
“If the Club terminates this Agreement before 6 months from the commencement
date of the Agreement, the Club shall pay the Head Coach the remaining amount of
the Agreement. For this purpose alone the total amount of the Agreement shall be
calculated as four million and eight hundred thousand US Dollars (4,800,000 USD)
since the Club would have paid the Head Coach the Advance payment stated in 3(ii).
If the Club terminates this Agreement after 6 months from the commencement date
of the Agreement, the Club shall pay to the Head Coach the amount of six (6)
monthly salaries, i.e. the amount of USD 1,200,000 (one million two hundred
thousand US dollars).”
3.
Furthermore, art. 4.C of the contract established the following:
“If the Head Coach terminate this Agreement before 6 months from the
commencement date of the Agreement, the Head Coach shall pay the Club the
remaining amount of the Agreement. For this purpose alone the total amount of the
Agreement shall be calculated as six million and six hundred thousand US Dollars
(6,600,000 USD).
If the Head Coach terminates this Agreement after 6 months from the
commencement date of the Agreement, the Head Coach shall pay to the Club the
amount of six (6) monthly salaries, i.e. the amount of USD 1,200,000 (one million two
hundred thousand US dollars).”
4.
On 5 February 2019, the Respondent unilaterally terminated the contract.
5.
On 7 February 2019, the Claimant addressed a correspondence to the Respondent,
asking to be paid the amount of USD 1,835,714 within 10 days, to no avail.
6.
On 26 February 2019, the Claimant lodged a claim against the Respondent in front
of FIFA, maintaining that the latter terminated the employment contract without
just cause, requesting the following amounts:
(i) USD 635,714,28 as outstanding remuneration, plus 5% interest p.a. as follows:
- Over the amount of USD 200,000 as of 1 December 2018;
- Over the amount of USD 200,000 as of 1 January 2019;
- Over the amount of USD 200,000 as of 1 February 2019;
- Over the amount of USD 35,714.28 as of 18 February 2019.
Coach Pablo Adrian Guede, Argentina / Club Al-Ahli Saudi FC, Saudi Arabia
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(ii) USD 3,200,000 (“alternatively the amount of USD 1,200,000”) as compensation
for breach of contract, plus 5% interest p.a. as of 18 February 2019.
7.
The Claimant explained that at the time the Respondent terminated the employment
contract, he had not received his salaries as from November 2018.
8.
Moreover, the Claimant pointed out that the compensation clause included in the
employment contract provided for different amounts in case of the same occurrence,
i.e. early termination of the employment contract. Consequently, the Claimant
deemed that the said clause should be disregarded and he should be compensated
the residual value of the contract.
9.
Furthermore, the Claimant explained that he should be paid as outstanding
remuneration the first 5 days of February, in which he worked.
10.
In its reply, the Respondent claimed that it paid the Claimant his salaries up until
January and, therefore, he is only entitled to “remaining five days of February salary
amounting to USD 32,083 and compensation of termination condition equivalent of
6 months salaries”.
11.
More in particular, the Respondent maintained that it paid the Claimant USD 385,000
for November and December 2018, since USD 15,000 were deducted to pay the
goalkeepers’ coach. Moreover, the Respondent claimed it paid the Claimant
USD 178,000 for January 2019, since (i) USD 7,500 were again deducted to pay the
goalkeepers’ coach and (ii) the SAFF Disciplinary Committee had imposed a fine of
USD 5,332 on the Claimant.
12.
The Respondent concluded that the contractual clause on compensation is clear and
should apply.
13.
The Claimant confirmed having received from the Respondent the following
amounts after having lodged his claim:
- USD 187,148 on 18 April 2019;
- USD 392,470 on 15 May 2019;
- USD 199,970 on 13 June 2019.
14.
The Claimant asked that those amounts be deducted from his original claim and
reiterated the rest of his argumentation. Furthermore, he pointed out that he never
signed the document by means of which he had allegedly entitled the Respondent
to deduct the salary of the goalkeepers’ coach from his. Moreover, he claimed he
was never notified the SAFF Disciplinary Committee’s decision.
15.
In its rejoinder, the Respondent claimed it paid the Claimant USD 593,125 more than
what he was entitled to, by means of a series of bank transfers.
16.
In light of the foregoing, the Respondent maintained that the Claimant was only
entitled to USD 606,875, representing the “remaining amount of the penalty”.
Coach Pablo Adrian Guede, Argentina / Club Al-Ahli Saudi FC, Saudi Arabia
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II.
Cons iderations of the S ingle Judge of the Play ers ’ S tatus Comm ittee
1.
First of all, the Single Judge analysed whether he was competent to deal with the
case at hand. Taking into account the wording of art. 21 of the 2019 edition of the
Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (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. 3 par. 1 and 2 of the Procedural Rules
and confirmed that in accordance with art. 23 par. 1 and 4 in combination with art.
22 lit. c) of the Regulations on the Status and Transfer of Players, he shall adjudicate
on an employment-related dispute between a club or an association and a coach that
has an international dimension.
3.
As a consequence, the Single Judge is the competent body to decide on an
employment-related dispute involving an Argentinian coach and a Saudi club.
4.
In continuation, 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 referred, on the one hand, to art. 26 par. 1 and 2 of the June 2018,
June 2019, October 2019, January 2020 editions of the Regulations on the Status and
Transfer of Players, and on the other hand, to the fact that the present claim was
lodged with FIFA on 26 February 2019. In view of the foregoing, the Single Judge
concluded that the June 2018 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 (cf. art. 26 par. 1 and 2 of the Regulations).
5.
His competence and the applicable regulations having been established, and
entering into the substance of the matter, the Single Judge started his analysis by
acknowledging the facts of the case and the arguments of the parties as well as the
documents contained in the file. The Single Judge, however, 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.
6.
In this respect and first of all, the Single Judge acknowledged that the Claimant and
the Respondent had concluded an employment contract valid as of from 20 June
2018 until 19 June 2020. Furthermore, the Single Judge took note that according to
said employment contract, the Claimant was entitled, inter alia, to an advance of
payment of USD 1,800,000 and a monthly salary of USD 200,000.
7.
The Single Judge further observed that the Claimant lodged a claim before FIFA
against the Respondent, asserting the Respondent had unilaterally terminated the
employment contract without just cause on 5 February 2019.
8.
In this regard, the Single Judge observed that it remained undisputed that the
Respondent terminated the contract without just cause. Hence, the Single Judge
decided that the Respondent must bear the financial and/or sporting consequences
of the early termination.
Coach Pablo Adrian Guede, Argentina / Club Al-Ahli Saudi FC, Saudi Arabia
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9.
Having established the above-mentioned, the Single Judge focused his attention on
the consequences of such termination. Taking into consideration art. 17 par. 1 of the
Regulations, the Single Judge decided that the Claimant would, in principle, be
entitled to receive from the Respondent an amount of money as compensation for
breach of contract.
10.
Subsequently, the Single Judge focused his attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so, he
firstly recapitulated that, in accordance with art. 17 par. 1 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 law of the country concerned, the specificity of sport and further objective
criteria, including, in particular, the remuneration and other benefits due to the
Claimant under the existing contract and/or the new contract, the time remaining on
the existing contract up to a maximum of five years.
11.
In application of the relevant provision, the Single Judge held that he first had to
clarify as to whether the pertinent employment contract contains 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.
12.
The Single Judge established that the employment contract, indeed, provided for
such provision, stipulating as follows :
“If the Club terminates this Agreement before 6 months from the commencement
date of the Agreement, the Club shall pay the Head Coach the remaining amount of
the Agreement. For this purpose alone the total amount of the Agreement shall be
calculated as four million and eight hundred thousand US Dollars (4,800,000 USD)
since the Club would have paid the Head Coach the Advance payment stated in 3(ii).
If the Club terminates this Agreement after 6 months from the commencement date
of the Agreement, the Club shall pay to the Head Coach the amount of six (6)
monthly salaries, i.e. the amount of USD 1,200,000 (one million two hundred
thousand US dollars).”
“If the Head Coach terminate this Agreement before 6 months from the
commencement date of the Agreement, the Head Coach shall pay the Club the
remaining amount of the Agreement. For this purpose alone the total amount of the
Agreement shall be calculated as six million and six hundred thousand US Dollars
(6,600,000 USD).
If the Head Coach terminates this Agreement after 6 months from the
commencement date of the Agreement, the Head Coach shall pay to the Club the
amount of six (6) monthly salaries, i.e. the amount of USD 1,200,000 (one million two
hundred thousand US dollars).”
13.
In this context, the Single Judge noted that the Claimant pointed out the said
compensation clause provided for different amounts in case of the same occurrence,
i.e. early termination of the employment contract and, consequently, the Claimant
deemed that the said clause should be disregarded and he should be compensated
the residual value of the contract.
Coach Pablo Adrian Guede, Argentina / Club Al-Ahli Saudi FC, Saudi Arabia
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14.
Equally, the Single Judge acknowledged the Respondent’s view that the contractual
clause on compensation is clear and should apply.
15.
In this regard, bearing in mind that the employment contract had been terminated
by the Respondent prior to its natural expiry and after 6 months from its start, the
Single Judge referred to the two pertinent paragraphs of the compensation clause,
which concern the eventuality that the contract is terminated after 6 months from
its start. The Single Judge deemed that said paragraphs appear to be reciprocal and
financially reasonable, thus, applicable.
16.
Consequently, the Single Judge decided, in light of the above-quoted provision, the
compensation for the breach of contract amounts to USD 1,200,000.
17.
Despite the constant practice and the general obligation to mitigate damages, the
Single Judge decided that mitigation is not applicable to the case at hand, since there
is a specific contractual clause specifying compensation in case of termination by the
club.
18.
Furthermore the Single Judge observed that the coach in his claim also seeked the
payment in the amount of (i) USD 635,714,28 as outstanding remuneration, plus 5%
interest p.a. as of the respective due dates.
19.
In this regard, the Single Judge took note of Claimant’s allegation, according to
which the latter had not received his salaries as from November 2018 at the time the
Respondent had terminated the employment contract. Furthermore, the Single
Judge acknowledged the Claimant’s explanation that he should be paid as
outstanding remuneration the first 5 days of February 2019, on which he worked.
20.
Equally, the Single Judge noted the Respondent’s position that it paid the Claimant
his salaries up until January and, therefore, he is only entitled to “remaining five days
of February salary amounting to USD 32,083 and compensation of termination
condition equivalent of 6 months salaries”.
21.
Furthermore, the Single Judge took note that the Respondent allegedly paid salaries
up until January 2019 as follows :
- USD 385,000 for November and December 2018, since USD 15,000 were deducted
to pay the goalkeepers’ coach;
- USD 178,000 for January 2019, since (i) USD 7,500 were deducted to pay the
goalkeepers’ coach and (ii) the SAFF Disciplinary Committee had imposed a fine
of USD 5,332 on the Claimant.
22.
Having said this, the Single Judge proceeded with an analysis of the circumstances
surroundings the present matter. Bearing in mind art. 12 par. 3 of the Procedural
Rules, in accordance with which any party claiming a right on the basis of an alleged
fact shall carry the burden of proof, the Single Judge concluded that the
Respondent’s alleged proof of payments do not constitute satisfactory evidence, also
in light of the communication received from the Claimant, in which he had attached
an extract from his bank account.
Coach Pablo Adrian Guede, Argentina / Club Al-Ahli Saudi FC, Saudi Arabia
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23.
With regard to the allegedly applicable deductions made by the Respondent, the
Single Judge wished to point out that the imposition of a fine, or any other available
financial sanction in general, shall not be used by clubs as a means to offset
outstanding financial obligations towards coaches. Consequently, the Single Judge
decided to reject the Respondent’s argument in this regard.
24.
In continuation, with regard to the deduction of the assistant coach’s salary from the
Claimant’s financial entitlements, the Single Judge deemed that such deduction shall
be disregarded as it lacks specific (i.e. quantified) contractual basis.
25.
In view of the above, the Single Judge concurred that the Respondent must fulfill its
obligations as per employment contract in accordance with the general legal
principle of pacta sunt servanda. Consequently, the Single Judge concluded that the
Respondent is liable to pay to the coach the remuneration that was outstanding at
the time of the termination, i.e. USD 635,714.28.
26.
Nonetheless, the Single Judge noted that Claimant, through the proceedings,
acknowledged the payment of the total amount of USD 779,558 in three payments
as follows: (i) USD 187,148 on 18 April 2019; (ii) USD 392,470 on 15 May 2019;
(iii) USD 199,970 on 13 June 2019.
27.
In light of the foregoing, the Single Judge calculated that the outstanding
remuneration had been coved by the above-mentioned payments. Thus, the Single
Judge decided that the Claimant is not entitled to the outstanding remuneration and
the residual amount of USD 143,873.72 (i.e. USD 779,588 – USD 635,714.28) should
be deducted from any compensation awarded.
28.
At this point, the Single Judge proceeded with the deduction of USD 143,873.72 from
the compensation of UDS 1,200,000. In this respect, the Single Judge decided that
the Claimant is entitled to USD 1,056,126 as compensation.
29.
Considering the Claimant’s claim for interest and also taking into account the
longstanding jurisprudence, the Single Judge ruled that the Respondent must pay
interest 5% p.a. on the amount of USD 1,056,126 as of the date on which the claim
was lodged, i.e. 26 February 2019, until the date of effective payment.
30.
The Single Judge concluded his deliberations in the present matter by establishing
that any further claim lodged by the Claimant is rejected.
31.
Lastly, 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 and the Single Judge, 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.
In this respect, the Single Judge highlighted that the claim was partially accepted
and that the Respondent was the party at fault. Therefore, the Single Judge decided
that the Claimant as well as the Respondent have to bear the costs of the current
proceedings in front of FIFA.
Coach Pablo Adrian Guede, Argentina / Club Al-Ahli Saudi FC, Saudi Arabia
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33.
Furthermore and 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. Consequently
and taking into account that the total amount at dispute in the present matter is
higher than CHF 200,001, the Single Judge concluded that the maximum amount of
costs of the proceedings corresponds to CHF 25,000.
34.
In conclusion and considering the specific circumstances of the case, the Single Judge
determined the costs of the current proceedings to the amount of CHF 20,000.
35.
Consequently, the Claimant has to pay the amount of CHF 5,000 and the Respondent
has to pay the amount of CHF 15,000 in order to cover the costs of the present
proceedings.
III.
Decision of the S ingle Judge of the Play ers ’ S tatus Com mittee
1.
The claim of the Claimant, Pablo Adrian Guede, is partially accepted.
2.
The Respondent, Al-Ahli Saudi FC, has to pay to the Claimant, w ithin 30 day s as
from the date of notification of the present decision, compensation for breach of
contract in the amount of USD 1,056,126, plus 5% interest p.a. as from 26 February
2019 until the date of effective payment.
3.
In the event that the amount due to the Claimant in accordance with the abovementioned numbers 2. is not paid by the Respondent within the stated time limit,
the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for consideration and a formal decision.
4.
Any further claimed lodged by the Claimant is rejected.
5.
The final costs of the proceedings in the amount of CHF 20,000 are to be paid as
follows:
5.1
The amount of CHF 15,000 has to be paid by the Respondent to FIFA to the
following bank account with reference to case nr. 19-00542/ssp:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
5.2
The amount of CHF 5,000 has to be paid by the Claimant. Considering that the
latter already paid an advance of costs in the amount of CHF 5,000 at the start
of the proceedings, the Claimant does not have to pay the costs of the
proceedings.
Coach Pablo Adrian Guede, Argentina / Club Al-Ahli Saudi FC, Saudi Arabia
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6.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance under point 2 above is to be made and to
notify the Players’ Status Committee of every payment received.
Note related to the publication:
*****
The FIFA administration may publish decisions issued by the Players’ Status Committee or
the DRC. Where such decisions contain confidential information, 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 20 of the Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber).
Note related to the appeal procedure:
According to art. 58 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. 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.
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Single Judge of the
Players’ Status Committee
Emilio García Silvero
Chief Legal & Compliance Officer
Coach Pablo Adrian Guede, Argentina / Club Al-Ahli Saudi FC, Saudi Arabia
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