F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – players’ and match agents disputes / controversie agenti di calciatori – fifa.com – atto non ufficiale – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 17 January 2017

Decision of the Single

by

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 31 March 2015, the players’ agent, Agent A, licensed by the Football Association of Country B (hereinafter: the Claimant), lodged a claim with FIFA against the Club of Country D, Club C (hereinafter: the Respondent), for breach of contract.

2. The Claimant alleged having entered into an agreement with the Respondent in connection with the transfer of the player, Player E, (hereinafter: the player) from the Club of Country B (hereinafter: Club F) to the Respondent.

3. According to the Claimant, the Respondent had agreed to pay him EUR 60,000 as commission in case of “successful completion” of the Player’s transfer (..) plus 5% of the Respondent’s profit in case of a future transfer of the Player to a third club”.

4. As alleged by the Claimant his commission was “finalized on 31/05/2013 with an email sent to the Claimant” and a “duly signed mandate and/or representation agreement was executed (..) and was sent attached to the email” (hereinafter: the statement). In this respect, the Claimant also specified that the relevant statement had followed a previous offer of the Respondent with regard to the his commission and provided FIFA with an email, dated 26 May 2013, related to the payment of a commission in the amount of EUR 50,000.

5. The statement, dated 31 May 2013, is addressed to the Claimant and states inter alia the following:

“Club C [i.e. the Respondent], hereby, states the terms of an agreement regarding the agent commission for the successful completion of a definitive transfer of the player (..) from the Club of Country B [Club F] to Club C.

 Agent commission fee 60K euro net (paid over 2 equal instalments; immediately after signing the individual contract by the player; and until 15 September 2013)

 5% of Club C profit from next transfer for the agent. Payable no later than 14 days after receiving the transfer fee obtained from a third club. Profit is understood as the difference between the fee obtained from the next transfer of the player (..) and the transfer fee paid to Club F by Club C (..)”.

6. The Claimant maintained having led the negotiations that had taken place between the Respondent and Club F as representative of the Respondent until June 2013, when the latter had abruptly broke all contracts. As to that, the Claimant provided FIFA with several emails as well as offers related to the player.

7. In this context, the Claimant further asserted having contacted the Respondent again on 21 June 2013 with respect to the player as well as another player, Player G, “because Player G is married to the sister of Player E” and “a possible transfer of Player G to the Respondent would work in the advantage of the latter regarding its wish to also the Player”.

8. Apparently, the Respondent never replied to the aforementioned email and, on 26 June 2013, concluded an employment contract with Player G as well as an employment contract with the player on 3 July 2013 without his involvement.

9. In addition, the Claimant explained having received an email from the Respondent on 30 June 2013, by means of which he had been informed that the latter “had directly contacted Club F and the Player”. As mentioned in the email in question, which is on file, the Respondent had been unsatisfied with the negotiations “handled by intermediaries” and “decided to proceed to reaching an agreement with the club and the player directly. (..) Nevertheless I wish to thank you for trying to help us, but evidently, since our last offer which expired on June 10th 2013, there was no further progress on your part. (..) The deal reached with Club F and Player E [i.e. the player] is on different terms than those indicated by you as acceptable by club and player. (..)”.

10. In the Claimant’s opinion, the Respondent had “fraudulently” gained “unjust advantage from the [his] long hours of work (..) to escape from its obligations to pay the agreed commission, stepped into the negotiations excluding the Claimant”.

11. In view of all the above and considering that the conditions included in the statement had been fulfilled, the Claimant deemed being entitled to receive his commission. According to the Claimant, without his intervention, the transfer of the player could not have taken place.

12. Hence, the Claimant requested from the Respondent the payment of EUR 60,000 “as due commission and/or outstanding remuneration”, plus 5% interests “as from the date of each due payment and/or the date of filing the present claim and/or the issue of the decision”. Equally, the Claimant requested FIFA to condemn the Respondent to pay him 5% of any profit gained by the latter in case of a subsequent transfer of the player.

13. In its response on 13 August 2015, the Respondent rejected the Claimant’s claim in its entirety.

14. According to the Respondent, the parties had never entered into a representation agreement in the sense of art. 19 par. 1 and 5 of the Players’ Agents Regulations (hereinafter: the Regulations).

15. Furthermore, the Respondent contested having “officially authorized” the Claimant “to act on his behalf as an official representative or as an agent (..) in the negotiations related to the transfer of the Player with Club F or the Player”.

16. Nevertheless, the Respondent admitted having sent “two proposal of the commission” to the Claimant, one of them being the statement, but clarified at the same time that they “were never intended to be a representation agreement or unconditional authorization / mandate” and “only stipulated the financial terms guaranteed” to the agent “in case of successful finalization of the transfer of the Player on terms expected by the Respondent”.

17. In the same context, the Respondent emphasized that in accordance with its first offer, the remuneration of the Claimant was “directly determined by the final outcome of the negotiations with Club F (..) over the transfer fee” and that this “reservations” were still valid and applicable on the statement.

18. Equally, the Respondent pointed out that “the transfer offer dated May 31, 2013 and the following final transfer offer presented by the Claimant to Club F on June 7, 2013 were rejected”. Therefore, in the Respondent’s opinion “the transaction was never carried out through the Claimant or on the terms expected by the Respondent when the proposals of commission were provided to the Claimant”.

19. In continuation, the Respondent specified that the Claimant’s activity had not been causal “to conclude the transfer agreement with Club F and the employment contract with the player” and pointed out that the Claimant had not even been able to introduce the Respondent to Club F or to conclude an agreement with the latter despite “three transfer and two employment contract offers”.

20. Equally, the Respondent underlined that all negotiations which resulted in the “conclusion of the transfer agreement between the Respondent and Club F on June 29, 2013 and the employment contract between the Respondent and the Player on June 30, 2013 were entirely conducted between the Respondent, Club F, and the Player without the participation of any intermediary or a football agent, excluding formal help of Player G (..)” and pointed out that the final terms of both contracts “were significantly different than those negotiated through the Claimant”.

21. In this context, the Respondent inter alia provided FIFA with a copy of the transfer agreement concluded with Club F by means of which the Respondent had undertaken to pay to Club F EUR 400,000 as fixed transfer fee.

22. In view of all the above, the Respondent concluded that the claim of the Claimant was not supported by any legal basis.

Agent A, Country B / Club C, Country D 5

23. In his replica on 21 June 2016, the Claimant insisted on his claim and rejected the allegations of the Respondent.

24. In this respect, the Claimant insisted on being entitled to receive his commission on the basis of the statement stressing that he had been duly authorized to act on behalf of the Respondent.

25. Furthermore, the Claimant specified that, in accordance with the statement “from the moment [he] was involved in the negotiations and form the moment that the transfer was eventually effected, [he] is entitled to the agreed payment” irrespective of the fact that he had been left out of the final stage of the negotiations.

26. Equally, the Claimant emphasized that his action had undoubtedly led to the conclusion of the transfer agreement and that the Respondent had admitted his involvement “in all stages of the negotiations but the final one”.

27. Finally, the Claimant argued that since the player was transferred from the Respondent to the Club H of Country J in the summer of 2015, he was entitled to receive “a payment equal to the 5% of the said transfer fee, as this has been declared in the FIFA TMS”.

28. Lastly, the Claimant provided FIFA with the statement, dated 21 June 2016, of a certain Mr K, who apparently worked as the Technical Director of Club F in the summer of 2013 and who confirmed that the “negotiations between Club F and the Respondent were initiated by Agent A from the end of May 2013 and up to 1 or 2 days before the conclusion of the transfer agreement, Agent A was in almost every day contact with our club pressing for his clients’ (the Respondent offer and trying to persuade us into accepting the Respondent’s third offer or at least making them a reasonable counter offer. As he [i.e. the Claimant] said a deal was very close).”

29. In its last position on 24 August 2016, the Respondent mainly reiterated the contents of his previous submission and contested the latest statement of the Claimant. In particular, the Respondent contested the statement of Mr K.

30. Furthermore, the Respondent highlighted the fact that the name and signature of the Claimant did not appear in the transfer agreement with Club F nor in the employment contract concluded with the player and argued that the latter was not even interested in a transfer before Player G signed with the Respondent.

31. In addition, the Respondent provided FIFA with the statements of Mr L, apparently the chairman of Club F, and of Mr M, who was allegedly an employee of the Respondent’s sport department between April 2013 and July 2013 and as such “responsible for international transfer issues, including acquisition of new players to Football Team of Country D”. Both statements confirmed the club’s version of the facts.

32. In particular, Mr L confirmed that “all negotiations concerning the transfer which resulted in signing of the transfer agreement concerning Player E [i.e. the player] were held between me as a representative of Club F and Mr M and Mr N as a representative of Football team of Country D, with help of Player G and without any involvement of Agent A”.

33. In accordance with the information included in the Transfer Matching System (TMS), on 1 June 2015, the Respondent concluded a transfer agreement with the Club H of Country J (hereinafter: Club H) related to the transfer of the player to Club H by means of which Club H had to pay to the Respondent EUR 350,000 as transfer fee.

II. Considerations of the Single Judge of the Players’ Status Committee

1. First of all, the Single Judge of the Players’ Status Committee analysed which procedural rules are applicable to the matter at hand. In this respect, he referred to art. 21 of the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (editions 2017 and 2014). The present matter was submitted to FIFA on 31 March 2015. Therefore, the Single Judge concluded that the 2014 edition of the Procedural Rules (hereinafter: the Procedural Rules) is applicable to the matter at hand.

2. Subsequently, the Single Judge analysed which edition of the FIFA Players’ Agent 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, considering that the present claim was lodged on 15 July 2011, the 2008 edition of the Players’ Agents Regulations (hereinafter: the Regulations) is applicable to the matter at hand.

3. With regard to his competence, the Single Judge 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 those 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 concerns a dispute between a players’ agent licensed by the Football Association of Country B and a Club of Country D, regarding an allegedly outstanding commission.

5. As a consequence, the Single Judge is the competent body 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 his analysis by acknowledging the facts of the case and the arguments of the parties as well as the documents contained in the file.

7. In doing so and first of all, the Single Judge took note that, on 31 May 2013, the Respondent signed a document addressed to the Claimant by means of which he had undertaken to pay to the latter EUR 60,000 as commission “for the successful completion of a definitive transfer of the player” from Club F to the Respondent as follows: EUR 30,000 “immediately after signing the individual contract by the player” and EUR 30,000 by 15 September 2013. Furthermore, the Single Judge noted that, as mentioned in the same document, the Respondent had also undertaken to pay to the Claimant 5% of the profit that the latter would have gained in case of a subsequent transfer of the player. Equally, the Single Judge noticed that, on 29 June 2013, the Respondent had concluded a transfer agreement with Club F as well as an employment contract with the player on 30 June 2013.

8. In continuation, the Single Judge observed that, in his claim to FIFA, the Claimant had requested the payment of the entire commission due in accordance with the statement since he had been involved in the negotiations that had finally led to the transfer of the player and arguing that the Respondent had never proceeded to the relevant payment. Furthermore and in the same context, the Single Judge acknowledged that, for its part, the Respondent, although admitting that the Claimant had been involved in part of the negotiations that had led to the transfer of the player, had rejected the latter’s claim contesting the fact that an agreement in the sense of art. 19 of the Regulations was concluded between the parties as well as arguing that the transfer of the player had not taken place in accordance with the terms negotiated by the Claimant.

9. Given the aforementioned, the Single Judge recalled that the statement had undisputedly been signed by the Respondent confirming the Claimant’s entitlement to a total amount of EUR 60,000 as well as 5% of the profit from a subsequent transfer. Hence, from the Single Judge’s point of view as well as in accordance with his well-established jurisprudence, regardless of whether an agreement had in casu been concluded between the parties in accordance with the Regulations or not, the document in question had to be considered valid and binding upon the Claimant and the Respondent.

10. Equally, the Single Judge underlined that it was uncontested that the prerequisites included in the statement had actually been accomplished as the player had been transferred from Club F to the Respondent. In this context and with regard to the Respondent’s allegation that the commission payable to the Claimant would depend on additional prerequisites which had not been included in the statement, the Single Judge pointed out that no evidence had been provided by the Respondent in support of such allegation. Hence, the Single Judge referred to art. 12 par. 3 of the Procedural Rules and stressed that any party deriving a right from an alleged fact shall carry the burden of proof. Consequently and since the Respondent had not been able to prove that the commission agreed between the parties depended on conditions different from the one included in the statement, the Single Judge concluded that only the terms specifically mentioned in the statement had to be taken into account.

11. Finally and for the sake of good order, the Single Judge was eager to emphasize that the involvement of the Claimant in the negotiations related to the transfer of the player from Club F, until at least June 2013, had not been disputed by the Respondent either.

12. In light of all the aforementioned, considering the basic legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith as well as bearing in mind the wording of the statement and the fact that the player was transferred to the Respondent by Club F at the end of June 2013, Single Judge came to the conclusion that, in order to comply with its contractual obligations towards the Claimant, the Respondent has to pay to the latter the commission stipulated in the statement.

13. Therefore and considering the content of the statement, the Single Judge established that the Respondent has to pay to the Claimant EUR 60,000 plus interest as follows: 5% p.a. over the amount of EUR 30,000 from 1 July 2013 until the date of effective payment and 5% p.a. over the amount of EUR 30,000 from 16 September 2013.

14. Having decided the aforementioned, the Single Judge turned his attention to the request of the Claimant related to the payment of 5% of the profit gained by the Respondent after the subsequent transfer of the player to Club H.

15. In this respect, the Single Judge focussed his attention to the wording of the relevant provision, which established that such profit consisted in the “difference between the fee obtained from the next transfer of the player (..) and the transfer fee paid to Club F (..)”.

16. Considering the specific wording of the statement and taking into account that the Respondent paid EUR 400,000 as transfer fee for the player to Club F but only received EUR 350,000 as transfer fee from Club H, the Single Judge established that no amount could be granted to the latter in this sense.

17. In conclusion, the Single Judge decided that the claim of the Claimant is accepted and that the Respondent has to pay to the Claimant EUR 60,000 plus interest as follows:

- 5% p.a. over the amount of EUR 30,000 from 1 July 2013 until the date of effective payment;

- 5% p.a. over the amount of EUR 30,000 from 16 September 2013.

18. 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.

19. In this respect, the Single Judge reiterated that the claim of the Claimant is accepted and that the Respondent is the party at fault. Therefore, the Single Judge concluded that the Respondent has to bear the entire costs of the current proceedings before FIFA.

20. 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 50,000 but lower than CHF 100,000, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 10,000.

21. In conclusion and in view of the numerous submissions that had to be analysed in the present matter as well as considering that a number of factual complexities had to be addressed, the Single Judge determined the costs of the current proceedings to the amount of CHF 7,000.

22. Consequently, the Single Judge decided that the Respondent has to pay the amount of CHF 7,000 in order 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 accepted.

2. The Respondent, Club C, has to pay to the Claimant, Agent A, within 30 days as from the date of notification of the present decision, the amount of EUR 60,000, plus interest, as follows:

a. 5% p.a. over the amount of EUR 30,000 from 1 July 2013 until the date of effective payment;

b. 5% p.a. over the amount of EUR 30,000 from 16 September 2013 until the date of effective payment.

3. If the aforementioned sum, plus interest as established above, is 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.

4. The final costs of the proceedings in the amount of CHF 7,000 are to be paid by the Respondent, Club C, within 30 days as from the date of notification of this decision, as follows:

4.1. The amount of CHF 5,000 has to be paid 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

4.2. The amount of CHF 2,000 has to be paid directly to the Claimant, Agent A.

5. The Claimant, Agent A, is directed to inform the Respondent, Club C, immediately and directly of the account number to which the remittances under points 2., and 4.2. 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).

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: info@tas-cas.org

For the Single Judge of the

Players’ Status Committee

Marco Villiger

Deputy Secretary General

Encl. CAS directives