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 26 March 2015

Decision of the Single Judge of the Players’ Status Committee

passed in Zurich, Switzerland, on 26 March 2015,

by

Geoff Thompson (England)

Single Judge of the Players’ Status Committee,

on the claim presented by the Players’ Agent

A, country S

represented by Mr xxxxxxxx

as “Claimant”

against the club

B, country I

as “Respondent”

regarding a contractual dispute between the parties.

I. Facts of the case

1. On 23 December 2011, the club from I, B (hereinafter: the Respondent) and the players’ agent A (hereinafter: the Claimant), licensed by the Football Association of S, concluded an agreement entitled “FIFA REPRESENTATION MANDATE” (hereinafter: the agreement) under the terms of which the Claimant was entitled to receive from the Respondent a commission amounting to EUR 250,000, subject to the extension of the employment contract of the player J (hereinafter: the player) with the Respondent, payable as follows:

- “EUR 62,500 no later than 31st December 2012;

- EUR 62,500 no later than 30th June 2013;

- EUR 62,500 no later than 31st December 2013;

- EUR 62,500 no later than 30th June 2014”.

2. According to art. 1 of the agreement, the latter was valid as from the date of signature until 30 June 2012.

3. On 9 September 2013, the Claimant lodged a claim with FIFA against the Respondent arguing that, although the player had extended his employment contract with the Respondent, the latter had not paid him the first two instalments of EUR 62,500 each pursuant to the agreement.

4. Consequently, the Claimant requested from the Respondent the total amount of EUR 125,000, i.e. EUR 62,500 plus 5% interest p.a. from 1 January 2013 until the date of effective payment as well as EUR 62,500 plus 5% interest p.a. from 1 July 2013 until the date of effective payment. In this respect, the Claimant provided FIFA with a letter dated 12 March 2012 and signed by both parties which states the following: “In accordance with the provisions of the FIFA Representation Mandate [i.e. the agreement], signed on the 23rd December 2011, I [i.e. the Claimant] am glad to inform you that all my duties were totally performed before the deadline, stipulated in the agreement. Consequently, the Sports Performance Contract between your respective club [i.e. the Respondent] and the football player, J has been extended on the satisfaction of both sides“.

5. On 9 October 2013, the Respondent rejected the Claimant’s claim in its entirety and argued that “the scope of the mandate [i.e. hereinafter: the agreement] as indicated under point 2) therein falls outside of the scope of application of the 2008 FIFA Players’ Agents Regulations, which limits its remit to the activities of the agents who represent players in the negotiation or renegotiation of employment contracts or who put in contact two clubs to one another for the conclusion of a transfer contract”.

6. The Respondent further deemed that the Claimant did not provide evidence of his alleged activity and that the player’s employment contract did not contain the Claimant’s signature.

7. Therefore, the Respondent requested FIFA to declare the agreement “ineffective” and to reject the entire complaint.

8. On 19 February 2014, the Claimant reiterated his previous allegations and added that the agreement had been concluded between the parties “to establish new economic and financial agreement pertaining to the prolongation of the employment with the player J [i.e. the player]”, activity which falls under the Players’ Agent Regulations. The Claimant further stated to have completed his work in accordance with the agreement since the player signed a new employment contract on 25 January 2012. Moreover, the Claimant was of the opinion that by signing both the letter dated 12 March 2012 and the invoice, the Respondent had agreed to pay the commission as per the agreement.

9. Therefore, the Claimant eventually requested the Respondent to pay him the total amount of EUR 187,500 as follows:

- EUR 62,500 plus 5% interest p.a. from 1 January 2013 until the date of effective payment ;

- EUR 62,500 plus 5% interest p.a. from 1 July 2013 until the date of effective payment ;

- EUR 62,500 plus 5% interest p.a. from 1 January 2014 until the date of effective payment.

10. Finally, the Claimant also requested the last instalment amounting to EUR 62,500 which “will mature by 30 June 2014” as well as 5% interest p.a. from 1 July 2014. In total, the Claimant requested the amount of EUR 250,000.

11. On 1 April 2014, the Respondent provided another agreement entitled “STATEMENT OF COMMITMENT” (hereinafter: the statement) which stipulated inter alia the following: “[…] I the undersigned, Mr A [i.e. the Claimant], […] accept and undersign this Statement to commit towards the B [i.e. the Respondent] and agree that, in case a new Club registers the player J [i.e. the player] or arranges for his transfer within and no later than June, 30th 2014, I will expressly waive my compensation for the payment instalments due. I therefore agree that nothing shall then be due by B with regards to the subject mandate of representation dated December 23rd, 2011 [i.e. the agreement]. By understanding this Statement of Commitment [i.e. the Statement], I therefore agree to waive any economic claim against the B, as nothing is still due, for any reason or entitlement, with reference to the subject FIFA mandate of representation dated December 23rd, 2011 [i.e. the agreement]”.

12. Therefore and since the player had been transferred to another club from I, V, on 22 July 2013, the Respondent deemed that nothing was due to the Claimant as commission.

13. On 23 June 2014, the Claimant contested the validity of the statement and explained that “at no time did he sign the foregoing document […] neither in I nor in English”. The Claimant further argued that the statement was forged by the Respondent in order to justify “its reluctance to comply with the contractually agreed terms”. Moreover, the Claimant found it odd that the Respondent provided such document only at such a late stage in the proceedings.

14. Furthermore, the Claimant argued that the translation into English of the statement “does not reflect the wording of the I text” and should be translated as follows: “Mr A [i.e. the Claimant] hereby duly empowered […] accept and undersign this Statement to commit toward the B [i.e. the Respondent] and agree that, in case a new Club registers the Player J or arranges for his transfer within no later than June 20th 2014, I will expressly waive my compensation for the payment of the instalments not yet matured, I therefore agree that nothing shall be then due by B to the Agent as payment with respect to the subject mandate of representation dated December 23rd, 2011. Therefore, by undersigning this Statement of Commitment [i.e. the Statement], Mr A, agrees to waive to lodge any economic claim whatsoever, since he has nothing to ask from B for any reason or entitlement with reference to further single instalments of payment related to the FIFA mandate of representation dated December 23rd 2011”.

15. Consequently, the Claimant reiterated its initial petition and requested from the Respondent the total amount of EUR 250,000 as outstanding commission plus interest.

16. In its last comments dated 11 August 2014, the Respondent deemed that the Claimant “has failed to prove by any appropriate means that his signature on the Statement of Commitment [hereinafter: the statement] was forged”. Finally, the Respondent emphasised that by signing the statement, the Claimant “waived his right to ask for any compensation, given that player entered into the employment contract with another club within the established period”.

17. Upon FIFA’s request, the Respondent provided with the original copy of the statement which was signed by the Claimant.

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 this respect, the Single Judge referred to art. 21 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (editions 2012 and 2014). In view of the fact that the present matter was submitted to FIFA on 9 September 2013, the Single Judge concluded that the 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.

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 on 9 September 2013, the current edition of the Players’ Agents Regulations (edition 2008; hereinafter: the Regulations) is applicable to the matter at stake.

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 S and a club from I, 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. The competence of the Single Judge of the Players’ Status Committee and the applicable regulations having been established and entering into the substance of the matter, the Single Judge went on to consider the documentary evidence that the parties had submitted in support of their allegations. Before doing so, the Single Judge was keen to recall the content of article 12 par. 3 of the Procedural Rules according to which “any party claiming a right on the basis of an alleged fact shall carry the burden of proof”. In other words, only allegations supported by clear evidence can be taken into consideration by the Single Judge of the Players’ Status Committee.

7. With the aforementioned in mind, the Single Judge observed that, in its submissions to FIFA, the Respondent had firstly stressed that the agreement concluded between the parties fell outside the scope of application of the Regulations.

8. In this context, the Single Judge acknowledged that the Claimant and the Respondent had concluded an agreement under the terms of which the Claimant would be entitled to receive from the Respondent the amount of EUR 250,000 as commission payable in four instalments of EUR 62,500 each, subject to the extension of the employment contract of the player with the Respondent.

9. Furthermore, the Single Judge of the Players’ Status Committee was eager to emphasise that, pursuant to art. 1 par. 1 of the Regulations “[T]hese regulations govern the occupation of players’ agents who introduce players to clubs with a view to negotiating or renegotiation an employment contract […]”.

10. In light of the aforementioned, the Single Judge came to the conclusion that, the agreement, which provided for the payment of a commission from the Respondent to the Claimant subject to the extension of the player’s employment contract with the Respondent, clearly fell under the scope of the Regulations.

11. In continuation, the Single Judge went on to address the allegation of the Respondent according to which the Claimant had also infringed the Regulations as the employment contract between the player and the Respondent did not contain the Claimant’s signature. In this respect, the Single Judge held that such omission could not per se invalidate the contractual relationship between the Claimant and the Respondent which had been laid out in their agreement, which clearly stipulated the obligations of each party and the conditions under which the Claimant would be entitled to his commission. In this respect, the Single Judge pointed out that the Claimant was not a party to the employment contract the Respondent had signed with the player and could therefore not have influenced its wording.

12. On account of all the above, the Single Judge concluded that the agreement had been validly concluded between the Claimant and the Respondent.

13. Having established the aforementioned, the Single Judge reverted to the document called “STATEMENT OF COMMITMENT” (hereinafter: the statement) dated 23 December 2011 and allegedly concluded between the parties. In this respect, the Single Judge remarked that the Claimant contested the validity as well as the translation into English of such statement.

14. In this regard, the Single Judge stressed that at this stage the question of whether the statement had been validly concluded between the Claimant and the Respondent and was therefore binding upon them had first to be addressed.

15. In doing so, the Single Judge underlined that the Respondent had provided at a later stage in the investigation the original of the statement dated 23 December 2011 which demonstrated that the Claimant had duly signed it.

16. On account of all the above, the Single Judge held that the statement had also been validly concluded between the Claimant and the Respondent.

17. Having established the abovementioned, the Single Judge observed that the Claimant had also contested the translation into English of the statement provided by the Respondent. In this respect, the Single Judge acknowledged that, on the one hand, the Respondent argued that, by signing the statement, the Claimant accepted to renounce to his commission as agreed upon in the agreement, in the event the player would be transferred to a third club before 30 June 2014, whereas, on the other hand, the Claimant stated that the statement only provided that he would waive the compensation for the payment of the instalments of his commission which had not yet matured at the date the player would be transferred to a third club before 30 June 2014.

18. In view of the two conflicting versions of the statement, the Single Judge reasoned that he had to revert to the true intention of the parties when signing the statement. In this regard, the Single Judge was keen to underline that such statement had been signed on 23 December 2011, i.e. on the same date the agreement was concluded between the Claimant and the Respondent, and that such “waiver” signed in advance could only refer to instalments which would be due after the player would be transferred to a third club. Therefore, the Single Judge came to the conclusion that the reasoning of the Respondent had to be rejected and that the Claimant, by signing the statement, only agreed to renounce to the instalments which would be due after the player would be transferred to a third club before 30 June 2014.

19. Moreover, the Single Judge took note that the player had been transferred to another club, V, on 22 July 2013, i.e. before 30 June 2014, and therefore the statement had to be respected by the parties.

20. Bearing in mind the abovementioned, the Single Judge reverted to the basic legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith. In this respect, the Single Judge established that the Respondent has to fulfil its contractual obligations towards the Claimant according to the agreement and the statement and consequently, pay him the total outstanding amount of EUR 187,500 representing the first three instalments under the agreement, the last instalment of EUR 62,500 which was due on 30 June 2014 having not been matured yet when the player was transferred to his new club V on 22 July 2013.

21. In view of all the above, the Single Judge decided that the Respondent has to pay to the Claimant EUR 187,500 as commission in accordance with the agreement and the statement.

22. 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 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.

23. Considering that the claim of the Claimant has been partially accepted, the Single Judge concluded that both parties have to bear the costs of the current proceedings before FIFA. 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 200,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

24. In conclusion, and in view of the special circumstances of the present matter, i.e. the parties’ submission and the legal and factual complexity of the matter in question, the Single Judge of the Players’ Status Committee determined the costs of the current proceedings to the amount of CHF 25,000.

25. Consequently, the Single Judge decided that the amount of CHF 5,000 has to be paid by the Claimant. Considering that the Claimant already paid an advance of costs in the amount of CHF 4,000 at the start of the present proceedings, the Claimant has to pay the final amount of CHF 1,000 in order to cover the costs in the present proceedings. Finally, the amount of CHF 20,000 has to be paid by the Respondent.

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

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

2. The Respondent, B, has to pay to the Claimant, within 30 days as from the date of notification of the present decision, the total amount of EUR 187,500 as follows:

a. EUR 62,500 plus an interest at a rate of 5% per year on the said amount from 1 January 2013 until the date of effective payment;

b. EUR 62,500 plus an interest at a rate of 5% per year on the said amount from 1 July 2013 until the date of effective payment.

c. EUR 62,500 plus an interest at a rate of 5% per year on the said amount from 1 January 2014 until the date of effective payment.

3. If the aforementioned total amount of EUR 187,500, 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. Any other claims lodged by the Claimant are rejected.

5. The final costs of the proceedings in the amount of CHF 25,000 are to be paid by both parties, within 30 days as from the date of notification of the present decision, as follows:

5.1 The amount of CHF 5,000 has to be paid by the Claimant. Considering that the latter already paid an advance of costs in the amount of CHF 4,000 at the start of the present proceedings, the Claimant, has to pay the amount of CHF 1,000.

5.2 The amount of CHF 20,000 has to be paid by the Respondent.

5.3 Both amounts have to be paid directly to FIFA to the following bank account with reference to case nr.:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance under point 2. above is 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. 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