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 22 May 2015

Decision of the Single Judge of the Players’ Status Committee

passed in Zurich, Switzerland, on 22 May 2015,

by

Geoff Thomson (England)

Single Judge of the Players’ Status Committee,

on the claim presented by the players’ agent

Players’ Agent A, country B

as “Claimant”

against the club

Club C, country D

as “Respondent”

regarding a contractual dispute arisen between the parties.

I. Facts of the case

1. On 19 July 2012, the Players’ Agent A (hereinafter: the Claimant), licensed by the Football Association of country B, and the Club C from country D (hereinafter: the Respondent), concluded a “Commission Agreement” (hereinafter: the agreement), under the terms of which the Claimant was entitled to receive from the Respondent, in connection to the transfer of the Player E (hereinafter: the player) to the Respondent, “a net amount of EUR 189,000 as commission fee” payable as follows (cf. clause 2 of the agreement):

1. “EUR 60,000 within 2 days after the signature of the work contract between the Club [i.e. the Respondent] and the Player;

2. EUR 63,000 on 1st June 2013;

3. EUR 66,000 on 1st June 2014”.

2. Clause 1 of the agreement specified that:

1. “The purpose of this Agreement is to govern the rights and obligations of the Agent [i.e. the Claimant] and the Club [i.e. the Respondent] in relation to the contract for professional football player between the Club and the Player E [i.e. the player];

2. The contract [i.e. the agreement] is valid and binding only if the Club and the Player concludes the employment contract and the Player is duly registered at the Football Association of country D”.

3. Clause 3.1 of the agreement stated that: “All fees recognized herein shall be accrued and credited in favour of the Agent [i.e. the Claimant]. All the fees shall be paid despite the fact that in the due date, the Agent does not hold the representation of the Player and in spite of the relationship between the Player and the Club in this moment”.

4. Clause 3.2 of the agreement stated as follows: “After 30 days of the non-payment at the due date of any of the amounts abovementioned, will automatically cause a 10% penalty of the amount we are referring to, accrue from the date of default interest determined according to the 12 month Euribor average plus percent points”.

5. On 25 March 2014, the Claimant lodged a claim in front of FIFA against the Respondent, arguing that the latter had failed to pay his alleged commission as agreed upon in the agreement. According to the Claimant, the player and the Respondent entered into an employment contract on 20 July 2012. The Claimant further explained that the Respondent had only paid the first instalment amounting to EUR 60,000 but failed to pay the remaining two instalments. Moreover, the Claimant explained to have sent a letter dated 13 February 2014 to the Respondent in order to obtain the payment of the remaining amounts stipulated in the agreement. Therefore, the Claimant requested the amount of EUR 135,000, representing the second and the third instalment agreed upon in the agreement as well as the sum of EUR 6,300 “foreseen in article 3.2 of the Commission Agreement [i.e. of EUR 63,000]” and interest of 5% on the total amount of EUR 135,000 calculated from the due dates.

6. In its response dated 14 May 2014, the Respondent rejected the claim in its entirety. First and foremost, the Respondent argued that the claim should be considered inadmissible as the counterparty in the agreement was the company “Company F” (hereinafter: the company) and not the Claimant himself. In this regard, the Respondent maintained that, according to the agreement, the commission would be pay to the bank account of the company. The Respondent further explained that the company, and not the Claimant himself, sent the invoices corresponding to the first and the second instalment respectively. Additionally, the Respondent argued that the Claimant signed the agreement on behalf of the company in his capacity of “legal representative” and not as a licenced players´ agent. Finally, the Respondent mentioned that in the letter dated 13 February 2014 sent by the legal representative of the Claimant, the latter was acting on behalf of the company and not on behalf of the Claimant.

7. With regard to the substance of the matter, the Respondent stated that the transfer agreement “does not contain the name and signature of the Claimant as agent for the Respondent nor does it mention the Claimant in any way. Therefore it is for the Claimant to prove his services for the Respondent in relation to the transfer agreement”.

8. Additionally, the Respondent stressed out that the request of the Claimant for the third instalment was not yet due and that the penalty for late payment could not be requested together with the default interest “according to the long standing jurisprudence of the PSC in similar cases”.

9. On 9 October 2014, the Claimant reiterated his previous allegations and amended its request as the third instalment was already due, and therefore requested:

1. “the entire amount of the compensation due under the contract, i.e. EUR 141,900 (made up of EUR 63,000 foreseen in Article 2(1)(b) of the Commission Agreement plus EUR 66,000 foreseen in Article 2(1)(c) of the Commission Agreement as well as EUR 12,900 foreseen in Article 3(2) of the Commission Agreement [10% of EUR 63,000 and 10% of EUR 66,000] in view of the breach of the Commission Agreement by the club from country D;

2. Interests of 5% on 141,900 calculated from the date that such amounts became due, i.e. 1 June 2013 for the EUR 63,000 foreseen in Article 2(1)(b) and 1 June 2014 for the EUR 66,000 foreseen in Article 2(1)(c), until the date of effective payment”.

10. The Respondent, in its last submission dated 26 January 2015, reiterated its previous position.

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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 edition of the Procedural Rules is applicable to the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 25 March 2014. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2012; hereinafter: Procedural Rules) are 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’ Agent Regulations should be applicable as to the substance in the matter at hand. 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 25 March 2014, 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. In this respect and first of all, the Single Judge noted that the Respondent had questioned the entitlement of the Claimant to lodge a claim in front of FIFA arguing that the counterparty in the agreement was the company “Company F” and not the Claimant as a licensed players´ agent.

5. Bearing in mind the aforementioned, the Single Judge held that the first issue to be addressed in the present dispute was whether the Claimant was indeed entitled to lodge a claim in front of FIFA on his behalf on the basis of the agreement.

6. In this context and after having carefully read the content of the agreement, the Single Judge pointed out that said agreement clearly mentioned the Claimant as one of its party and is referred in the agreement as “the Agent”. Besides, the Single Judge emphasized that there was no indication in the relevant document that could suggest that it had been concluded by the company of the Claimant and not by the Claimant himself. Indeed, the Single Judge observed that the Claimant was clearly mentioned in the agreement in person as well as mentioned as “the Agent”, together with the name of the company which he appears to belong to. Consequently, the Single Judge reasoned that the Claimant had concluded the agreement on his behalf and not as a representative of the company “Company F”. Hence, the Single Judge determined that the Claimant was entitled to lodge a claim with FIFA on the basis of the agreement and, therefore, rejected the argument submitted by the Respondent in this respect.

7. Therefore, 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 from country D, regarding an alleged outstanding commission.

8. 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).

9. 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. However, the Single Judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand.

10. In doing so and to begin with, the Single Judge remarked that the parties concluded an agreement for the participation of the Claimant in the negotiations for the transfer of the player to the Respondent. In this respect, the Single Judge acknowledged that the Claimant was entitled to receive from the Respondent the total amount of EUR 189,000 as “commission fee”.

11. In continuation, the Single Judge took note that, after having amended his initial claim, the Claimant had requested from the Respondent the payment of the total amount of EUR 141,900 corresponding to the second and third instalment of the agreed commission (cf. point I. 1/) as well as EUR 12,900 foreseen in Article 3 (2) of the agreement corresponding to the 10% penalty for late payment, as well as 5% interest per year as from the respective due dates.

12. Likewise, the Single Judge remarked that, for its part, the Respondent had rejected the Claimant’s complaint arguing that the transfer agreement did not contain the name and the signature of the Claimant as agent for the Respondent and that the Claimant did not prove to have been involved in the negotiations for the transfer of the player to the Respondent.

13. In view of the above, the Single Judge went on to analyse the content of the agreement concluded between the parties on 19 July 2012 and, in particular, its respective clauses 1 and 2. In doing so, the Single Judge reasoned that the terms of such clauses clearly established the payment of a commission agreed upon in advance to be paid to the Claimant for his services in connection with the transfer of the player to the Respondent. In addition, clause 2 established the contractual obligation for the Respondent to pay the agreed commission in the event that the player and the Respondent conclude an employment contract which would be duly registered at the Football Association of country D.

14. Having established the aforementioned, the Single Judge recalled that the Respondent had contested the Claimant’s involvement in the negotiations for the transfer of the player to the Respondent. In this respect, the Single Judge was eager to emphasise that the agreement concluded between the Respondent and the Claimant clearly provided that the latter would be entitled to receive his commission if the player would conclude an employment contract with the Respondent which would be registered at the Football Federation of country D. In this regard, the Single Judge pointed out that such contractual conditions were fulfilled as the Claimant proved that the player and the Respondent concluded an employment contract which was duly registered at the Football Federation of country D by providing such employment contract dated 20 July 2012.

15. Furthermore, the Single Judge recalled that the Respondent had also argued that the employment contract of the player with the Respondent did not contain the Claimant’s name and signature. In this regard, despite the lack of the Claimant’s name and signature in the employment contract concluded between the player and the Respondent, the Single Judge recalled that, regardless of whether the document in question also bore the signature of the Claimant or not, the Respondent had clearly undertaken to pay the commission to the Claimant by concluding the agreement with the Claimant. Furthermore and for the sake of completeness, the Single Judge pointed out that, as a general rule, such omission is only a formal prerequisite which do not affect the validity of the agreement the parties concluded as it is confirmed by the well-established jurisprudence of the Players´ Status Committee.

16. In continuation, the Single Judge held that, in accordance with the basic legal principle of Pacta sunt servanda which in essence means that agreements must be respected by the parties in good faith, the Respondent has to fulfil its contractual obligations towards the Claimant and therefore has to pay to the latter the second instalment in the amount of EUR 63,000 as well as the third instalment amounting to EUR 66,000 based on the agreement.

17. With the abovementioned considerations in mind, the Single Judge turned his attention to the second part of the Claimant’s request, i.e. the additional claimed amount of EUR 12,900 corresponding to the penalty established in clause 3.2 of the agreement.

18. In this context and after analysing the content of clause 3.2 of the agreement which provided for a “10% penalty of the amount we are referring to, accrue from the date of default interest” in case of non-payment by the Respondent after 30 days of the due dates, as well as taking into account that according to the agreement the second and the third instalment of the commission had to be paid on 1st June 2013 and on 1st June 2014 respectively, the Single Judge decided that the Respondent has to pay to the Claimant interest at a rate of 10% per year on the amount of EUR 63,000 as from 2 July 2013 until the date of effective payment as well as interest at a rate of 10% per year on the amount of EUR 66,000 as from 2 July 2014 until the date of effective payment.

19. Additionally and with regard to the Claimant’s request for interest at 5% per year as from the relevant due dates, the Single Judge referred to the well-established jurisprudence of the Players’ Status Committee in similar cases and concluded that the Claimant, in the present matter, cannot be entitled to both the 10% penalty stipulated in clause 3.2 of the agreement as well as interest.

20. 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.

21. On account of the above and considering that the claim of the Claimant has been partially accepted and that the Respondent is the party at fault, the Single Judge concluded that the Respondent has to bear the entire costs of the current proceedings before FIFA.

22. 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. On that basis, the Single Judge held that the amount to be taken into consideration in the present proceedings is over CHF 150,000 and below CHF 200.000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 15,000.

23. In conclusion, and in view of the circumstances of the present matter, the Single Judge determined the costs of the current proceedings to the amount of CHF 10,000. Consequently, the Single Judge of the Players’ Status Committee decided that the amount of CHF 10,000 has to be paid by the Respondent in order to cover the costs of the present procedure.

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

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

2. The Respondent, Club C, has to pay to the Claimant, Players’ Agent A, within 30 days as from the date of notification of the present decision, the total amount of EUR 129,000 as follows :

a. EUR 63,000 plus an interest at a rate of 10% per year on the said amount from 2 July 2013 until the date of effective payment;

b. EUR 66,000 plus an interest at a rate of 10% per year on the said amount from 2 July 2014 until the date of effective payment.

3. If the aforementioned sums, plus interest as established above, 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.

4. Any other claims lodged by the Claimant, Players’ Agent A, are rejected.

5. The final costs of the proceedings in the amount of CHF 10,000 are to be paid by the Respondent, Club C, within 30 days as from the date of notification of the present decision, as follows:

5.1 The amount of CHF 7,000 have to be paid directly to FIFA to the following bank account with reference to case nr. XXXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

5.2 The amount of CHF 3,000 has to be paid to the Claimant, Players’ Agent A.

6. The Claimant, Players’ Agent A, is directed to inform the Respondent, Club C, immediately and directly of the account number to which the remittances under point 2. And 5.2 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 article 67 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

Markus Kattner

Acting Secretary General

Encl. CAS Directives