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 28 February 2017

Decision of the Single of the Players’ Status Committee

passed in Zurich, Country B, on 28 February 2017,

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 4 September 2011, the Club of Country D, Club C, (hereinafter: the Respondent) issued a document (hereinafter: the statement), addressed to the Company E (hereinafter: the company) represented by the players’ agent, Agent A, licensed by the Football Federation of Country B (hereinafter: the Claimant), by means of which the Respondent undertook to “give you 10% from the contract between Club C and Club F as commission after finishing the transfer of the player / Player G [hereinafter: the player] to Club C”.

2. On 1 July 2013, the Claimant lodged an unspecified claim with FIFA against the Respondent on the basis of the statement arguing that the latter had failed to pay him his commission, although he had been involved in the transfer of the player from the Club of Country H, Club F, (hereinafter: Club F).

3. In this respect, the Claimant provided FIFA with several emails allegedly exchanged with Club F as well as with the Respondent.

4. In addition, the Claimant provided FIFA with a statement of the Respondent dated 4 September 2011 (hereinafter: the second statement), addressed “to whom it may concern”, by means of which the latter gave its “exclusive authorization to Company E (..) Represented by Agent A, to make enquiries on its behalf in regard to a potential playing contract for the player, Player G, (..)”.

5. On 22 August 2013, FIFA referred the Claimant to the content of art. 3 par 1. and 6 par. 1 of the Players’ Agents Regulations (hereinafter: the Regulations). In the same correspondence the Claimant was made aware of the well-established jurisprudence of the Players’ Status Committee in accordance with which the Players’ Status Committee is not in a position to intervene in a dispute between an agent and his client, if the representation contract was not concluded between the player/club and the agent personally.

6. In his response thereto, the Claimant insisted on his claim arguing that he was the “sole director of my company, Compagy E, which was in this case (..) mandated by Club C even”.

7. In addition and by means of a further correspondence dated 23 September 2013, the Claimant requested from the Respondent the payment of EUR 900,000 as commission alleging that the latter had received EUR 9,000,000 from Club F for the player.

8. In its response on 13 February 2017, the Respondent rejected the Claimant’s claim in its entirety.

9. In this respect and to begin with, the Respondent contested the receivability of the claim arguing its prescription on the basis of art. 25 par. 5 of the Regulations as it was based on a transfer that had taken place more than two years before.

10. Equally, the Respondent referred to art. 6 par. 1 of the Rules Governing the procedure of the Players’ Status and the Dispute Resolution Chamber and pointed out that FIFA was no longer competent to decide on a dispute involving a players’ agent.

11. In continuation and notwithstanding the aforementioned, the Respondent admitted having mandated the agent on 3 September 2011 “to make enquires on its behalf in respect of a permanent transfer of the Player (..) from Club F” and admitted having agreed “that in case of the successful of Agent A to conclude this permanent transfer, Club C will pay 10% of the transfer fee as a commission pursuant to offer letter dated 4 September 2011 (which shall not consider as a representation agreement or a contract between both Parties)”. In the Respondent’s opinion, no representation agreement in the sense of art. 19 of the Regulations had even been concluded between the parties.

12. According to the Respondent, since the negotiations led by the Claimant had not been successful, its relationship with the latter was terminated.

13. In the same context, the Respondent also alleged having concluded a loan agreement with Club F using the services of another players’ agent, Mr J, and provided FIFA with the representation agreement allegedly concluded with the latter. As further specified by the Respondent, the relevant loan agreement included an option “to purchase the Player at the end of the loan period”.

14. In view of the above and since the “terms and condition reached by Agent A is different than the terms and conditions reached by Mr J”, the club argued that the agent had “no right at all to claim any commission (..) as he was not a part of the concluded loan transfer of the player in anytime”.

15. Finally, the Respondent requested from the agent the payment of CHF 3,000 as compensation for the legal costs incurred.

16. According to the information included in the Transfer Matching System (TMS), the player was transferred on loan to the Respondent from Club F by means of a loan agreement dated 9 September 2011. Furthermore and in accordance with the

information included in TMS, on 20 June 2012, the Respondent and Club F concluded an agreement concerning the definitive transfer of the player to the Respondent.

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 simply referred to as: the Single Judge) analysed which procedural rules are applicable to the matter at hand. In view of the fact that the present matter was submitted to FIFA on 1 July 2013, the Single Judge of the Players’ Status Committee concluded that 2012 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the present matter (cf. art. 21 of the Procedural Rules).

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 1 July 2013, 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 Federation of Country B and a Club of Country D, regarding an allegedly outstanding commission.

5. As a consequence, the Single Judge would, in principle, be competent to deal with the matter at stake, which has an international dimension (cf. art. 30 par. 2 of the Regulations).

6. However, the Single Judge acknowledged that the Respondent had contested the admissibility of the claim of the Claimant alleging that such claim was time-barred.

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

7. In this regard, the Single Judge referred to art. 30 par. 4 of the Regulations in accordance with which he shall not hear any case subject to the Regulations if more than two years have elapsed from the event giving rise to the dispute.

8. Hence, taking into account that the claim of the Claimant was lodged on 1 July 2013 and considering that the player was transferred on loan to the Respondent on 9 September 2011, the Single Judge concluded that the claim of the Claimant had been lodged within the two years deadline provided in the Regulations and therefore that it was not time-barred.

9. Furthermore and with regard to the Respondent’s allegation that FIFA would no longer be competent to decide on a dispute involving players’ agents, the Single Judge recalled once again that the claim of the Claimant was lodged on 1 July 2013 and that, at that time, the Regulations were still in force and the 2012 edition of the Procedural Rules was applicable.

10. In view of the aforementioned, the Single Judge concluded that he was competent to hear the claim lodged by the Claimant and to decide on his request.

11. 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. In doing so and first of all, the Single Judge acknowledged that on 4 September 2011, the Respondent issued a document, addressed to the company, represented by the Claimant, by means of which it had undertaken to pay 10% of the contract concluded with Club F as commission for the transfer of the player. Furthermore, the Single Judge remarked that on 9 September 2011, a loan agreement was concluded between the Respondent and Club F in connection with the player.

12. In continuation, the Single Judge acknowledged that, in his claim to FIFA, the Claimant had requested to be remunerated and compensated by the Respondent on the basis of the statement specifying, inter alia, that he was the sole owner of the company. Besides, the Single Judge noted that for his part, the Respondent had rejected the Claimant’s claim arguing that the loan agreement for the player was concluded using the services of another players’ agent as well as pointing out that no representation agreement had been concluded with the Claimant.

13. In view of the aforementioned, the Single Judge deemed that the first question to be addressed in the present matter was whether the Claimant was entitled to receive the relevant commission on the basis of the statement.

14. In this respect and to begin with, the Single Judge recalled once again that the statement was addressed to the company and that the Claimant was only mentioned in the document in question as its representative. Furthermore, the Single Judge pointed out that, in accordance with the wording of the statement, the Respondent had undertaken to make a payment to its addressee, i.e. to the company. In addition, the Single Judge was eager to emphasise that also the second statement referred to the company in particular and to the Claimant only as its representative. As a result, the Single Judge came to the conclusion that it had to be assumed that the statement was addressed to the company as such and not to the Claimant personally. Hence, from the Single Judge’s point of view, in accordance with his well-established jurisprudence, it could not be ascertained that an agreement had been personally concluded between the Claimant and the Respondent with regard to the loan of the player to Club F.

15. Having determined the aforementioned and considering the Claimant’s allegation according to which he had been the sole owner of the company, the Single Judge turned his attention to art. 3 par. 2 of the Regulations and stressed that it provided for a players’ agent to organize his occupation as a business as long as his employees’ work was restricted to administrative duties connected with the business activity of a players’ agent. Furthermore, the Single Judge pointed out that in accordance with the same paragraph, only the players’ agent himself was entitled to represent and promote the interests of players and / or clubs in connection with other players and / or clubs. In addition, the Single Judge recalled that a players’ agent licence is issued to natural persons only and emphasized that applications from companies are not permitted (cf. art. 3 par. 1 and art. 6 par. 1 of the Regulations). This fact constitutes one of the crucial principles of the Regulations and is based on the general approach that in the relationship between an agent and his client the personal element is of outstanding importance.

16. Furthermore and for the sake of good order, the Single Judge was eager to emphasise that, as a legal entity, a company is usually an independent legal subject.

17. In view of all the aforementioned and taking into account that no agreement seemed to have between personally concluded between the Claimant and the Respondent, the Single Judge resolved that the claim of the Claimant has to be rejected.

18. Finally and with regard to the Respondent’s request related to the reimbursement of the legal costs incurred, the Single Judge referred to art. 18 par. 4 of the Procedural Rules as well as to his long-standing and well-established jurisprudence, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Players’ Status Committee or the Dispute Resolution Chamber. Consequently, the Single Judge decided to reject the Respondents request relating to legal expenses.

19. Lastly, the Single Judge referred to art. 30 par. 5 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.

20. In this respect, the Single Judge reiterated that the claim of the Claimant is rejected. Therefore, the Single Judge decided that the Claimant has to bear the entire costs of the current proceedings in front of FIFA.

21. 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 over CHF 200,001, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

22. In conclusion, considering that the case at hand was adjudicated by the Single Judge and not by the Players’ Status Committee in corpore, that the present case did not show any particular factual difficulties and specific legal complexities, the Single Judge determined the costs of the current proceedings to the amount of CHF 10,000.

23. Consequently, the Single Judge decided that the Claimant has to pay the amount of CHF 10,000 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 admissible.

2. The claim of the Claimant, Agent A, is rejected.

3. The final costs of the proceedings in the amount of CHF 10,000 are to be paid by the Claimant, Agent A. Considering that the Claimant, Agent A, already paid the amount of CHF 5,000 as advance of costs at the start of the present proceedings, the latter has to pay the remaining amount of CHF 5,000, within 30 days as from the date of notification of the present decision, 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

*****

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

Omar Ongaro

Football Regulatory Director

Encl. CAS directives