Labour Disputes
Texto da decisão
REF. FPSD-16109
Decision of the
Players’ Status Chamber
passed on 7 November 2024
regarding an employment-related dispute concerning the coach Ashley
Michael Westwood
BY:
Javier Vijande Penas, Argentina
CLAIMANT:
Ashley Michael Westwood, Great Britain
Represented by James Kitching
RESPONDENT:
Afghanistan Football Federation
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REF. FPSD-16109
I. Facts of the case
1.
On 9 November 2023, the British coach Ashley Michael Westwood (hereinafter: the Coach
or the Claimant) and the Afghanistan Football Federation (hereinafter: the AFF or the
Respondent) entered into an employment contract (hereinafter: the Contract) valid as from
1 November 2023 until 31 November 2024.
2.
The Contract provided for the following in relation to the remuneration owed by the AFF to
the Coach, quoted verbatim:
“Salary: The [Coach]’s monthly salary will be USD 13,000. The payment amount will be
directly credited into the [Coach]’s bank account monthly, and it includes the salaries of
assistant coach and psychotherapist”.
3.
The Contract was signed only by the Coach and the AFF representatives.
4.
On 4 May 2024, the Coach opened a bank account in Afghanistan.
5.
On 5 June 2024, the AFF paid the Coach USD 13,000 for his November 2023 salary.
6.
On 23 July 2024, the Coach sent the AFF a notice of default for overdue payments totalling
USD 91,000, representing seven salaries (i.e., from December to June 2024). The Coach
demanded that the default be remedied within 15 days.
7.
On 3 August 2024, the AFF replied to the Coach’s email requesting his foreign bank account
details for payment.
8.
According to the Coach, on 4 August 2024, he provided the AFF with his bank account
details in UK. The evidence provided in this regard does not support this assertion.
9.
On 5 August 2024, the AFF paid the Coach USD 13,000 for his December 2023 salary.
10. On 8 August 2024, the Coach notified the AFF of the termination of the Contract due to
overdue payables.
11. On 28 August 2024, the Coach entered into a new employment agreement with the Hong
Kong Football Association (HKFA), valid as from the signing date until 27 August 2026.
Accordingly, the Coach is entitled to HKD 145,000 per month.
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REF. FPSD-16109
II. Proceedings before FIFA
12. On 18 September, the Coach filed the claim at hand before FIFA. A summary of the parties’
position is detailed below.
a. Position of the Coach
13. The Coach argued that he had terminated the Contract for just cause in accordance with
art. 5 of the Annexe 2 to the FIFA Regulations on the Status and Transfer of Players.
14. As a result, the Coach requested to be awarded the following amounts:
•
USD 91,000 as outstanding remuneration, corresponding to seven salaries (i.e.,
from January to July 2024); and
•
USD 39,000 as compensation for breach of contract, calculated as follows:
o
USD 52,000 as the residual value;
o
Minus USD 55,800 as the full mitigation with the HKFA; and
o
Plus USD 39,000 as additional compensation.
15. The Coach’s requests for relief were as follows, quoted verbatim:
“43. The Claimant kindly requests that the PSC of the FT order that:
43. 1. this claim is admissible:
43.2. the Claimant terminated the Contract with just cause;
43.3. the Respondent pay compensation to the Claimant as follows:
43.3.1. USD 91,000. as outstanding remuneration; and
43.3.2. USD 52.000 (or alternatively USD 39,000), as compensation for breach of
contract without just cause;
43.4. the Respondent pay penalty interest of five percent (5%) per annum as follows:
43.4.1. on USD 13,000 from 1 February 2024;
43.4.2. on USD 13,000 from 1 March 2024;
43.4.3. on USD 13,000 from 1 April 2024;
43.4.4. on USD 13,000 from 1 May 2024;
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REF. FPSD-16109
43.4.5. on USD 13,000 from 1 June 2024;
43.4.6. on USD 13,000 from 1 July 2024;
43.4.7. on USD 13,000 from 1 August 2024; and
43.4.8. on USD 52,000 (or alternatively on USD 39,000) from 9 August 2024”.
b. Position of the AFF
16. The AFF failed to respond to the claim despite having been invited to do so.
III. Considerations of the Players’ Status Chamber
a. Competence and applicable legal framework
17. First of all, the Single Judge of the Players’ Status Chamber (hereinafter: the 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 18 September 2024 and submitted
for decision on 7 November 2024. 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.
18. Furthermore, 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 par. 1 lit. c) of the
Regulations on the Status and Transfer of Players (June 2024 edition), the Players’ Status
Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a British coach and the AFF, i.e.,
a member association to FIFA.
19. 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 (June 2024 edition), and
considering that the present claim was lodged on 18 September 2024, the June 2024
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Merits of the dispute
20. Having established the competence and the applicable regulations, 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
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REF. FPSD-16109
considerations he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for assessing the matter at hand.
21. As a starting point, the Single Judge acknowledged that:
•
this is a claim for outstanding remuneration and compensation for breach of
contract brought by the Coach against the AFF;
•
the Coach submits that a valid employment agreement existed between the
parties, which was terminated prematurely due to the AFF’s failure to meet its
financial obligations; and
•
as the AFF did not respond to the claim, any analysis must be based on the evidence
submitted by the Coach (cf., art. 21, par. 1 of the Procedural Rules).
22. As a result, the Single Judge determined that his task would be, in principle, to confirm
whether the Coach had just cause to terminate the Contract and to determine the
consequences of the termination.
23. The foregoing notwithstanding, the Single Judge, in analysing the Contract, noted that,
although it was concluded exclusively between the Coach and the AFF, it provided for a
global remuneration owed by the AFF to the coaching staff, which consisted of (i) the Coach;
(ii) an assistant coach; and (iii) a physiotherapist.
24. In other words: the Contract does not provide for a specific remuneration for each member
of the coaching staff, but rather provides for a global remuneration and entitles the Coach
to receive / claim on their behalf. As such, the Single Judge pointed out that the credit that
the Coach is now seeking includes not only his own remuneration, but the amounts owed
to the entire coaching staff employed by the AFF.
25. Consequently, the Single Judge considered that the present case also raises a question as
to the Coach’s standing to sue vis-à-vis the sums sought on behalf of his colleagues and the
content of the Regulations. The Single Judge remarked that the issue of standing is
characterised as a matter of substantive law, as opposed to procedural law, and that such
standing derives from the fact of the party in question being the legal holder of the right in
dispute. Therefore, a party has standing to sue (or be sued) if the claim affects a substantive
right of their own.
26. Against this background, the Single Judge recalled that art. 2, par. 1 of the Annexe 2 of the
Regulations provides that: “A coach must have a written contract with a club or an association,
executed on an individual basis” (emphasis added).
27. Furthermore, the Commentary to the Regulations (edition 2023) refers to the collective
contracts as follows:
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REF. FPSD-16109
“The first standard is that the contract must be in writing. The second is not so obvious.
The phrase “executed on an individual basis” at the end of paragraph 1 explicitly
prohibits so-called ’group contracts’. It is not uncommon for the PSC to decide on
matters whereby a foreign head coach is accompanied by their chosen coaching team
of 6 or 7 staff covering both football-specific and non-football-specific roles. To try and
avoid those individuals not employed in football-specific roles not being subject to FIFA
jurisdiction, the foreign head coach signs a single contract with the club which covers the
payment for the whole coaching team, who effectively act as his sub-contractors (i.e. the
foreign head coach receives the salary for the whole coaching team from the club, and
then pays his coaching team directly). Such mechanisms are now outlawed, to protect
the Regulations from being circumvented.” (emphasis added; p. 458).
28. In this regard, although the Single Judge confirmed that the Contract was concluded on an
individual basis (i.e., exclusively between the Coach and the AFF), the Single Judge could not
fail to observe that the financial obligations undertaken by the AFF were established
collectively.
29. According to the Single Judge, the mens legis behind art. 2, par. 1 of the Annexe 2 of the
Regulations is to prevent cases exactly like the one at hand: a collective contract / or
provision determining that a party (i.e., Coach) is entitled to seek relief before the Football
Tribunal on behalf of individuals who are not employed in football-specific roles and
therefore fall outside the jurisdiction of FIFA (e.g., fitness coaches, physiotherapists,
translators, and the like).
30. In the view of the Single Judge, to accept otherwise would not only be contra legem, but
would also jeopardize legal certainty. Similarly, accepting such a manoeuvre could also
pose a risk to the integrity of the FIFA dispute resolution system, as it would imply awarding
compensation to individuals who cannot be parties before the Football Tribunal and
therefore over whom FIFA has no jurisdiction (cf., definition no. 26 and art. 22 of the
Regulations in conjunction with art. 9, par. 1 of Procedural Rules).
31. Based on all the above and in strict compliance with the Regulations, the Single Judge
decided that the Coach lacks standing to sue on behalf of his colleagues and should only
be entitled to claim his own credit, if any.
32. At this point, 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).
33. In light of the foregoing, the Single Judge considered that it was for the Coach to prove his
own entitlement in relation to the amount set out in the Contract. The Single Judge stressed
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REF. FPSD-16109
that this burden could have been met by the Coach by disclosing a proper breakdown of
his remuneration as opposed to his colleagues and/or by providing information about any
repayments made to such parties.
34. Nevertheless, the Single Judge pointed out that (i) the Contract did not specify the amounts
due to each member of the coaching staff in general and to the Coach himself in particular,
and (ii) the Coach did not provide any explanation or evidence capable of proving his
entitlements in relation to the overall remuneration specified in the Contract.
35. In particular, the Single Judge pointed out that the bank statements and notices of default
submitted by the Coach were not also not conclusive for the purpose of differentiating the
shares of the remuneration due to each member of the coaching staff.
36. Consequently, the Single Judge considered that it was not possible to determine the
Coach’s share of the outstanding remuneration or compensation for breach of contract.
Therefore, the Coach could not discharge his burden of proof in this respect.
37. Based on all the foregoing, the Single Judge concluded that the claim of the Coach should
be dismissed in its entirety.
c. Costs
38. 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.
39. 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.
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REF. FPSD-16109
IV. Decision of the Players’ Status Chamber
1.
The claim of the Claimant, Ashley Michael Westwood, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-16109
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 – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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