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Why Need Commitment To Achievement?
By Lawyer Le Trong Them (*)
Sunday,  Dec 29, 2019,11:44 (GMT+7)

Why Need Commitment To Achievement?

By Lawyer Le Trong Them (*)

Park Hang Seo, senior coach of Vietnam's national football squad

Coach Park Hang Seo of the national football team and all his predecessors must commit to the team’s achievements when signing a contract with the Vietnam Football Federation (VFF). Some have wondered about the professional and legal significance of such commitment that football coaches must honor. The answer to this question lies in the relationship between the coach and VFF, and which legal validity there is in the former’s commitment to achievement.

As manager of the Vietnam national football team, Park is technically just an employee of VFF. According to the federation, it signed a new contract with Park on November 5 in line with a three-year term. Legally speaking, this is a three-year labor contract between VFF and Park, though it has never been mentioned so.

Like other foreign employees, Park needs a work permit, whose term is not to exceed two years. Additionally, it is stipulated that the term of the labor contract must correspond to the term of the work permit.

The contract between Park and VFF must also meet certain requirements, such as job description, place of work, salary, form of payment, working and break time, etc. Moreover, Park, as a foreign worker, is obligated to pay the personal income tax at the same progressive rate as other workers whose income is taxable. Therefore, the salary he and VFF agreed on is the after-tax one, meaning the sum he is actually paid after the personal income tax has been deducted.

Commitment: the basis for assessing the level of work execution

The media once reported that the vicious losing streak of a certain football club had led to the dismissal of their coach. From a legal perspective, the term “dismissal” was incorrectly used. It is because “dismissal” is a legal term that indicates the form of discipline for employees who break the company’s rules when working. Meanwhile, the loss of one’s job because their personal capacity or achievement falls short of their employer’s expectation is considered a unilateral termination of the labor contract done by the employer. It is necessary to clearly distinguish the violations of the existing regulations in the case of employees due to their personal shortcomings failing to complete the task assigned as committed between the related parties.

As per the current labor laws of Vietnam, VFF can unilaterally terminate the labor contract with a coach because of his poor performance only when both the necessary and sufficient conditions are satisfied. The necessary condition is that the job description must be qualitatively clarified when VFF negotiates with the coach. For example, Park must serve as the head coach of both the national team and the U23 team. In case these two teams have overlapping schedules, he is given the right to form the coaching staff. Of course, the job description needs to provide more details about the work a coach must do, such as coaching and teaching the team tactics, attending domestic matches to discover and recruit talents. Besides, Park and VFF need to discuss the sufficient condition, namely the criteria of achievements, or KPI (short for the Key Performance Index).

Unlike the old labor law system, the 2012 Labor Code and its guiding documents also require VFF to develop a set of criteria to evaluate the level of work execution for a coach and include it in their regulations. This is the basis for assessing whether a coach often fails to fulfill his/her task. For example, if Park has committed to certain achievements of the national team and/or the U23 team, like making it through the qualifying round, reaching the semi-finals or the final, then VFF has the right to unilaterally terminate the labor contract with him once he failed to fulfil his commitment.

How to resolve contractual disputes?

Disputes over a contract between a coach and a football club or a national football federation are not something unusual. Citing the case of Coach Letard who led the Vietnam U23 team at the 2002 LG Cup tournament as an example, VFF unilaterally terminated the labor contract with this French coach in an illegitimate way. Coach Letard later filed a complaint to the International Federation of Football Association (FIFA), and was declared as the winner of the case and eligible for US$35,000 worth of compensation. Not satisfied with such modest compensation, Letard brought the case to the Court of Arbitration for Sports (CAS). On September 30, 2004, CAS arrived at their decision to force VFF to compensate the French coach US$197,800, plus an extra US$2,500 to cover the surcharges. In case VFF failed to execute this ruling (by the deadline of January 10, 2005), the Vietnam national football team could be banned from playing internationally for two years.

When disputes between a football coach and his employer are handled by FIFA or CAS, the coach in question has the right to sue his boss according to the labor contract if the latter, as the employer, breaches the contract, and goes against the labor laws of Vietnam.

A difference between football and other fields is that FIFA, CAS and the football organizations whose members are nations have their own rules. Any nation or football club as a member must comply with the rules set by these organizations. Although most of these organizations do not have a body to enforce their decisions, the soft power they wield that determines whether a football club or a nation can join the playing field they preside over makes most of their judgments voluntarily exercised in practice.

Lesson for recruiting senior personnel

In case a coach with whom it has signed a three-year contract keeps delivering poor performance, what should VFF do? Certainly, it is impossible to keep this coach and pay him generously. However, it is impossible to fire him either since the coach does not break any labor rules. If VFF unilaterally exercises their rights in a careless way, it may sometimes trigger disputes, which may do harm to their reputation and put them at risk of paying a considerable sum of compensation.

This case of VFF can be associated with any company that looks to hire a senior leader in hope of reaping better business results. To protect their legal rights and position, when recruiting the managerial personnel, companies need to follow all the steps including signing a labor contract with detailed, specific terms, along with a comprehensive job description. When pursuing the objectives that companies entrust to such managerial staff, they need to prepare and sign a KPI. It is because not only does this help optimize personnel costs, but it also serves as the “last resort” when companies want to enlist new recruits to refresh their apparatus. Meanwhile, professional employees need to get mentally prepared and draw up a plan to complete the task they are assigned and zealously do it until the end.

(*) LTT & Lawyers Law Firm

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