F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – players’ and match agents disputes / controversie agenti di calciatori – (2017-2018) – fifa.com – atto non ufficiale – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 29 August 2017.

Decision of the Single Judge  of the Players’ Status Committee

passed in Zurich, Switzerland, on 29 August 2017,

by

Mr Geoff Thompson (England)

Single Judge of the Players’ Status Committee,

on the claim presented by the players´ agent

Agent A, Country B

as “Claimant”

against the club

Club C, Country D

as “Respondent”

regarding a contractual dispute between the parties.

I. Facts of the case

1. On 5 June 2014, the players´ agent Mr Agent A licensed by the Football Confederation of Country B (hereinafter: “the Claimant”), and the Club of Country D, Club C (hereinafter: “the Respondent”), concluded a representation contract (hereinafter: “the contract”) in relation with the player, Player E (hereinafter: “the player”).

2. Clause 1.1 of the contract stated: “Club hereby acknowledged that the agent assisted the club during the negotiations with Club F for the permanent transfer of the contractual and registration rights of the player to the club”.

3. Clause 2 of the contract stated: “In consideration of the services rendered by the agent, the club herein undertakes to pay the agent a commission in the amount of USD 350,000 due by no later than 30 August 2014” (…) “If Club fails to provide the payment in the due date herein agreed, a fine of 10% (ten percent) plus interest will accrue on the full amount outstanding at the rate of 10% (ten percent) annual rate from the due date until the date of payment”. (emphasis in the original).

4. On 16 November 2014, the Claimant lodged a claim in front of FIFA against the Respondent requesting the payment of USD 250,000 as outstanding commission; a fine of 10% plus an interest rate of 10% on the full outstanding amount from the due date until the date of effective payment (cf. point 4 above-mentioned).

5. In this respect, the Claimant alleged that he assisted the Respondent in negotiating the terms of the transfer agreement concluded between the Respondent and Club F (hereinafter: “Club F”). Moreover, the Claimant argued that the Respondent made a partial payment to him amounting to USD 100,000 and as a consequence an amount of USD 250,000 remains unpaid.

6. In its reply to the claim, the Respondent argued having paid to the Claimant the two following payments:

 1,370,000 (allegedly equivalent to USD 100,000) on 22 October 2014;

 1,875,001 (allegedly equivalent to USD 125,839) on 21 January 2015.

7. In his replica, the Claimant confirmed having received from the Respondent the amount of USD 125,839 on 21 January 2015. Moreover, the Claimant argued that there is still an outstanding amount of USD 124,161 (i.e. USD 350,000 – USD 225,839) as commission due.

8. Therefore, the Claimant amended his claim and requested the following amounts:

 USD 124,161 plus an annual interest of 10% from 1 September 2014 (i.e. day after due date) until the date of effective payment;

 USD 35,000 as fine equivalent to 10% of total commission agreed between the parties due to the Respondent´s failure to pay the total commission on time (cf. point 4 above-mentioned);

 USD 822 as default interest applicable between 1 September 2014 and “1 October 2014” in connection with the payment made by the Respondent (USD 100,000) on “1 October 2014”;

 USD 4,713 as default interest applicable between 1 September 2014 and 21 January 2015 in connection with the payment made by the Respondent on 21 January 2015.

9. In its duplica, the Respondent rejected the Claimant´s allegation and argued having made to the latter a first payment on 15 August 2014 amounting to USD 100,000. Therefore, the Respondent stated having paid to the Claimant the total amount of “USD 325,839” in relation to the matter at stake. The Respondent enclosed a copy of an invoice dated 15 August 2014 issued by “Company G” for an amount of USD 100,000.

10. Upon FIFA´s request, the Claimant contested the payment amounting to USD 100,000 allegedly made by the Respondent on 15 August 2014. In particular, the Claimant argued that the Respondent enclosed as evidence of said payment only an invoice issued by the Claimant´s company but not a copy of the bank transfer (swift) as the Respondent did with regard to the other two payments.

11. In continuation, the Claimant reiterated his previous demands as mentioned in point 9.

12. Despite the fact that the Respondent was invited to present additional comments, the latter did not provide any further allegations or evidence.

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 which procedural rules are applicable to the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 16 November 2014. 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 at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the Single Judge analysed which edition of the FIFA Players’ Agents Regulations should be applicable. In this respect, he confirmed that in accordance with art. 39 par. 1 and 4 of the 2008 edition of the Players’ Agents Regulations, and considering that the present claim was lodged with FIFA on 16 November 2014, the edition 2008 of the Players’ Agents Regulations (hereinafter: “the Regulations”) is applicable to the matter at stake.

3. With regard to his competence, the Single Judge of the Players’ Status Committee pointed out that in accordance with the provisions set out by the Regulations,

FIFA has jurisdiction on matters relating to licensed players’ agents, i.e. on individuals who hold a valid players’ agent licence issued by the relevant member Association.

4. The Single Judge continued his deliberations by indicating that the present matter concerned a dispute between a players’ agent licensed by the Football Confederation of Country B and a Club of Country D, regarding an alleged outstanding commission.

5. As a consequence, the Single Judge of the Players’ Status Committee is competent to decide on the present matter which has an international dimension (cf. art. 30 par. 2 of the Regulations).

6. His competence and the applicable regulations having been established, and entering into the substance of the matter, the Single Judge started by acknowledging the above-mentioned facts as well as the documentation contained in the file. However, the Single Judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.

7. To start with, the Single Judge focussed his attention to the Claimant´s request for USD 124,161 as outstanding commission.

8. In this regard, the Single Judge took note that it remained uncontested by both parties that the Respondent made the following two partial payments, i.e. USD 100,000 on 1 October 2014 and USD 125,839 on 21 January 2015 respectively.

9. At this stage, the Single observed that the Respondent alleged having made an extra partial payment in favour of the Claimant amounting to USD 100,000 on 15 August 2014, i.e. before the due date.

10. However the Single Judge remarked, that the Respondent failed to present enough evidence to proof his allegation and that the Claimant contested having received such payment. In particular, the Single Judge did not understand why the Respondent waited until its duplica to argue having made the alleged payment on 15 August 2014. In the Single Judge´s view, it was more plausible that the invoice presented by the Respondent as alleged payment and the one made in October 2014 were actually one and the same.

11. Bearing in mind the aforementioned, the Single Judge decided that, in accordance with the general principle of pacta sunt servanda, the Respondent must fulfil the obligation it voluntarily entered into with the Claimant by means of the contract, and therefore, that the Respondent must pay to the Claimant the outstanding commission amounting to USD 124,161.

12. In continuation, the Single Judge noted that the Claimant requested the amounts of USD 822 and USD 4,713 as default interest taking into account the period of delay between the day after the due date of the payment of the relevant

commission (i.e. 1 September 2014) until the date of each of the two partial payments performed by the Respondent.

13. As to the amount of USD 822, the Single Judge acknowledged that both parties had contradictory information regarding the exact date of the first payment made by the Respondent, i.e. 1 or 22 October 2014. Therefore, the Single Judge was not ready to accept the Claimant´s request for USD 822.

14. In relation to the amount of USD 4,713, since the date of payment was undisputed by the parties, i.e. 21 January 2015, the Single Judge decided to grant this amount and add it to the outstanding commission.

15. In view of the aforementioned, the Single Judge concluded that the Claimant is entitled to receive the amount of USD 128,874, i.e. USD 124,161 plus the amount of USD 4,713.

16. In continuation, the Single Judge took note that the Claimant requested a default annual interest of 10% over the amount of USD 124,161 based on clause 2, third paragraph of the contract and a penalty of 10% over the outstanding amount amounting to USD 35,000 based on same contractual clause.

17. In this respect, the Single Judge was keen to emphasise that according to the long standing and well-established jurisprudence of the Players´ Status Committee in similar cases, a compensation or penalty for late payment cannot be requested together with default interest as both requests are punitive in nature and aim at compensating the creditor for late payment.

18. In this context, the Single Judge focused his attention to the penalty requested by the Claimant, i.e. USD 35,000 and concluded that a 10% penalty over the outstanding commission seems to be a reasonable amount.

19. The Single Judge recalled, once again, the legal principle of pacta sunt servanda according to which the Respondent must honoured the obligations voluntarily assumed in the contract towards the Claimant

20. In view of the above, the Single Judge decided to grant the aforementioned penalty.

21. However, the Single Judge rejected the Claimant´s request for an annual interest of 10% over the outstanding amount of USD 124,161.

22. Nevertheless, following his longstanding practice the Single Judge decided to grant a 5% annual interest as follows:

 5% p.a. on the amount of USD 100,000 from 1 September 2014 until 1 October 2014 and

 5% p.a. on the amount of USD 124,161 from 1 September 2014 until the date of effective payment.

23. In view of all the above, the Single Judge decided that the claim of the Claimant has to be partially accepted and held that the Respondent has to pay to the Claimant the amount of USD 128,874 as outstanding amount as well as an interest of 5% per annum over the partial payments as from the respective due dates and a penalty amounting to USD 35,000 in accordance with the terms established in the contract.

24. 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, including the Single Judge, costs in the maximum amount of CHF 25,000 are levied. The relevant provision further states that the costs are to be borne in consideration of the parties’ degree of success in the proceedings.

25. 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. The amount in dispute to be taken into consideration in the present proceedings is USD 250,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

26. Considering that, in the case at hand, the responsibility of the failure to comply with the contractual obligations can entirely be attributed to the Respondent and taking into account the particular circumstances of the present matter, the Single Judge determined the costs of the current proceedings in the amount of CHF 25,000 and held that such costs have to be borne by both parties.

27. In conclusion, the Single Judge decided that the amount of CHF 5,000 has to be paid by the Claimant and the amount of CHF 8,000 by the Respondent, to cover the costs of the present proceedings.

III. Decision of the Single Judge of the Players’ Status Committee

1. The claim of the Claimant, Agent A, is partially accepted.

2. The Respondent, Club C, has to pay to the Claimant, Agent A, within 30 days as from the date of notification of this decision, the amount of USD 128,874, plus interest as follows:

 5% per annum on the amount of USD 100,000 from 1 September 2014 until 1 October 2014 and

 5% per annum on the amount of USD 124,161 from 1 September 2014 until the date of effective payment.

3. The Respondent, Club C, has to pay to the Claimant, Agent A, within 30 days as from the date of notification of this decision, the amount of USD 35,000 as fine.

4. Any further claims lodged by the Claimant, Agent A, are rejected.

5. If the aforementioned amounts plus interests 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.

6. The final costs of the proceedings amounting to CHF 13,000 are to be paid by both parties, within 30 days as from the date of notification of the present decision, as follows:

6.1 The amount of CHF 5,000 has to be paid by the Claimant, Agent 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, Agent A, is exempted to pay said amount to FIFA.

6.2 The amount of CHF 8,000 has to be paid by the Respondent, Club C, directly to FIFA to the following bank account with reference to case nr. XXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

7. The Claimant, Agent A, is directed to inform the Respondent, Club C, directly and immediately of the account number to which the remittance under points 2. and 3. above are 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. 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, 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).

For the Single Judge of the

Players’ Status Committee

Omar Ongaro

Football Regulatory Director

Encl. CAS directives