5624 Dominique Cuperly V

Tribunal Arbitral du Sport Court of Arbitration for Sport Arbitration CAS 2018/A/5624 Dominique Cuperly v. Club Al Jazira, award of 17 December 2018 Panel: Mr Bernhard Welten (Switzerland), Sole Arbitrator Football Termination of an employment contract by settlement agreement Applicable law in appeals arbitration procedure before the CAS Non-exclusive jurisdiction of FIFA for football employment-related matters CAS jurisdiction to decide on the merits of the case 1. An indirect choice of law is – in principle – always superseded by a direct choice of law. The reason is that – generally speaking – the rules of the arbitral institutions do not wish to limit the parties’ autonomy in any respect. This, however, is not true in the context of appeals arbitration procedures before the CAS. It follows from Article R58 of the CAS Code that the “applicable regulations”, i.e. the statutes and regulations of the sports organisation that issued the decision, are applicable to the dispute irrespective of what law the parties have agreed upon. Therefore, Article R58 of the Code takes precedence over the direct choice-of-law clause contained in the parties’ agreements and, thus, the rules and regulations of the sports organisation that issued the decision apply primarily. Although Article R58 of the CAS Code limits the parties’ freedom to choose the applicable law, the provision does not totally exclude the autonomy of the parties, as it expressly provides that in addition to the applicable “rules and regulations” a CAS panel shall apply “the law chosen by the parties”. Of course the scope of such choice is limited. It only comes into play subsidiarily, i.e. insofar as the applicable rules and regulations do not regulate the legal question at stake. 2. Based on Article 22 of the Regulations for the Status and Transfer of Players (RSTP), the parties have the possibility to opt out of the FIFA jurisdiction and bring employment-related matters before a civil court of their choice. 3. If the parties validly agreed that a civil court is competent to decide on any dispute in relation to their contractual relationship, neither FIFA nor the CAS upon appeal have jurisdiction to decide on the merits of their dispute. I. PARTIES 1. Mr. Dominique Cuperly (the “Coach” or the “Appellant”), born on 5 September 1952, is a physical / assistant coach of French nationality. Since the termination of the employment CAS 2018/A/5624 2 Dominique Cuperly v. Club Al Jazira, award of 17 December 2018 relationship with Club Al Jazira, he is no longer working as a football coach. 2. Club Al Jazira (hereinafter referred to as the “Club” or the “Respondent”), is a football club with its registered office in Abu Dhabi, United Arab Emirates (“UAE”). The Club plays in the UAE Pro League and is a member of the United Arab Emirates Football Association (“UAE FA”) which in turn is affiliated to the Asian Football Confederation (“AFC”) and Fédération Internationale de Football Association (“FIFA”). II. FACTUAL BACKGROUND A. Facts 3. Below is a summary of the main relevant facts, as established by the Sole Arbitrator on the basis of the Parties’ submissions and the exhibits produced during these proceedings. Additional facts and allegations found in the Parties’ submissions and evidence may be set out, where relevant, in connection with the legal discussion that follows. While the Sole Arbitrator has considered carefully all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, he refers in his Award only to the submissions and evidence he considers necessary to explain his reasoning. 4. On 8 May 2014, the Coach and the Club signed an employment contract (the “Employment Contract”) according to which the Coach was employed for two seasons, starting on 1 June 2014 until 30 June 2016. The Coach was hired as a part of the coaching staff of the Club’s head coach, Mr. Eric Gerets. 5. Based on Article 5 of the Employment Contract, the Coach was entitled to a monthly salary of EUR 24,000 net, as well as bonus payments at the discretion of the Club for any match victory of the Club in the Asian Champion’s League, UFL League or President’s Cup equal to the bonus paid to one of the players. 6. In addition, the Coach was also entitled to other benefits, such as 8 return tickets (economy class) from France to the United Arab Emirates for himself and his family during the two contracted seasons (see Article 5.3 Employment Contract), a furnished 3-bedroom apartment in Abu Dhabi including utilities for himself and his family (see Article 5.4 Employment Contract), medical insurance for him and his family (see Article 5.5 Employment Contract) and a car (see Article 5.6 Employment Contract). 7. On 15 June 2015, after having terminated the employment contract of the head coach Mr. Eric Gerets, the Club terminated the Employment Contract of the Coach with immediate effect. 8. On 18 / 22 November 2015, the Parties signed a Settlement Agreement (the “Settlement Agreement”) in which the Club agreed to pay to the Coach a net amount of EUR 109,926.83 on or before 31 January 2016. 9. By 31 January 2016, the Club failed to pay the agreed amount based on the Settlement CAS 2018/A/5624 3 Dominique Cuperly v. Club Al Jazira, award of 17 December 2018 Agreement. 10. On 28 March 2016, the Club sent an e-mail to the Coach asking for an extension of the deadline to pay the amount agreed upon in the Settlement Agreement until 25 April 2016 at the latest. 11. On 29 March 2016, the Coach, respectively his legal representative, filed a letter with the Club stating that the payment agreed upon in the Settlement Agreement was not paid by the Club and that, therefore, such Settlement Agreement had to be considered as null and void. As a consequence, he asked for the payment of EUR 417,300, to be paid within eight days. 12. No payments were ever made by the Club to the Coach. B. Proceedings before the FIFA Players’ Status Committee (“PSC”) 13. On 16 May 2016, the Coach filed a claim before the competent FIFA authority, as the Respondent did not pay the amount agreed on in the Settlement Agreement, requesting the payment of the amount of EUR 417,900. He requested a total amount of EUR 415,800 from the Club, as he considered the Settlement Agreement as null and void. The requested amount is composed as follows: a) EUR 72,000 (3 x EUR 24,000) as outstanding salaries for the season 2014/2015; b) EUR 1,600 (2 x 800) corresponding to the allocation allegedly due for the flight tickets during the season 2014/2015; c) EUR 3,000 (3 x 1,000) corresponding to the allocation allegedly due for the use of the vehicle during the season 2014/2015; d) match bonuses; e) EUR 288’000 (12 x EUR 24’000) as compensation for the residual value of contract (season 2015/2016); f) EUR 3’200 (4 x EUR 800) corresponding to the allocation allegedly due for the flight tickets during the season 2015/2016; g) EUR 12,000 (12 x EUR 1,000) corresponding to the allocation allegedly due for the use of the vehicle during the season 2015/2016; h) EUR 36’000 (12 x EUR 3’000) corresponding to the allocation allegedly due for the use of the apartment during the season 2015/2016; as well as all legal and proceeding costs to be borne by the Respondent. 14. In its submission to FIFA, the Club contested the jurisdiction of the PSC to rule on this dispute, since the Parties concluded in Article 8 of the Settlement Agreement that the courts of the Emirate of Abu Dhabi shall have jurisdiction to deal with any disputes arising thereto in accordance with the laws of the UAE. 15. Furthermore, the Club was of the opinion that the amount claimed by the Coach based on the Employment Contract is not owed, due to the amount of EUR 109,926.83 agreed upon in the CAS 2018/A/5624 4 Dominique Cuperly v. Club Al Jazira, award of 17 December 2018 Settlement Agreement, replacing all obligations arising from the Employment Contract. However, the Club was not able to fulfil its obligation due to its financial situation. 16. On 27 September 2017, the Single Judge of the PSC decided that the Player’s claim was inadmissible and, therefore, that he had two bear the costs of the FIFA proceedings. 17. Based on the Player’s request to get the grounds of the decision, the PSC sent the fully reasoned decision on 27 February 2018 to the Parties (the “Appealed Decision”). 18. The Single Judge of the PSC stated that the Appellant and the Respondent validly concluded two agreements, the Employment Contract on 8 May 2014 and the Settlement Agreement on 22 November 2015, both stating that any dispute arising from or in relation to the mentioned Employment Contract (Article 10) and Settlement Agreement (Article 10) would be submitted to the non-exclusive jurisdiction of the courts of Abu Dhabi, UAE. 19. The Single Judge of the PSC took into consideration the fact that the Appellant based his claim on the Employment Contract, alleging that the Settlement Agreement should not be considered in the present dispute, as he deemed it became null and void due to the non-payment of the amounts stipulated therein. However, the Single Judge of the PSC confirmed that the Settlement Agreement concluded by the Appellant and the Respondent replaced the initial Employment Contract and became fully valid and enforceable on the date of its signature by both Parties, i.e.

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