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 8 May 2017

Decision of the Single Judge of the Players’ Status Committee

passed in Zurich, Switzerland, on 8 May 2017,

by

Mr Raymond Hack (South Africa)

Single Judge of the Players’ Status Committee,

on the claim presented by the players´ agent

Agent A, Country B

as “Claimant”

against the player

Player C, Country D

as “Respondent”

regarding a contractual dispute between the parties.

I. Facts of the case

1. On 2 October 2013, the players´ agent, Agent A licensed by the Football Federation of Country B (hereinafter: “the Claimant”) and the Player of Country D, Player C (hereinafter: “the Respondent”) concluded a representation contract (hereinafter: “the contract”) valid from 2 October 2013 until 1 October 2015.

2. Clause 1 of the contract stated that “This agreement is a fixed term contract, it will take effect on 02.10.2013 and will terminate on 01.10.2015. The termination of this agreement could be made by the mutual consent only”.

3. Clause 2 of the contract stated that “The Agent [i.e. the Claimant] is entitled to receive a commission in amount of 10% of the total amount of the player´s contracts, which are signed with clubs, during the term of this Agreement – until 01.10.2015”.

4. Clause 3 of the contract established that “The parties agree that on the power of this agreement, the player´s agent receives exclusives rights to negotiate and represent the player [i.e. the Respondent] in any transfer activities regarding all CLUBS WORLDWIDE. The player [i.e. the Respondent] is forbidden to sign a contract with any club, using the representation or help of any 3rd parties or himself alone. In such case the Player [i.e. the Respondent] will be obliged to pay the agent [i.e. the Claimant], within 14 days from the signing of the contract, a penalty in amount of 15% from the total amount of the signed contract”.

5. Clause 4 of the contract provided that “Law of Country B and regulations of The FA of Country B, including the regulations of FIFA and UEFA are valid and govern this agreement. The parties agree to adhere to the statutes, regulations, directives and decisions of the competent bodies of FIFA, the confederations and the relevant associations, as well as public law provisions governing job placement and other laws applicable in the territory of the association, as well as international law and applicable treaties”.

6. On 9 February 2015, the Claimant lodged a claim in front of FIFA against the Respondent requesting the payment of EUR 225,000 as penalty in accordance with clause 3 of the contract “along with the interest (in the rate of 5% per annum) on the amount due since 13-10-2014”.

7. In this respect, the Claimant alleged that the Respondent signed an employment contract with the Club of Country E, Club F (hereinafter: “Club F”) without his knowledge and consent despite the terms agreed in clause 3 of the contract.

8. Furthermore, the Claimant argued having received an e-mail, on 7 October 2014, from the Respondent´s lawyer by means of which the Respondent unilaterally terminated the contract since the latter lost his trust in the Claimant claiming that the latter did not fulfilled his obligations.

9. However, the Claimant deemed that he carried out his obligations as assumed in the contract. The Claimant enclosed evidence about emails sent to clubs and other agents within the period from 6 November 2013 and 19 August 2014.

10. Therefore, the Claimant argued that the Respondent did not have just cause to terminate the contract. The Claimant further referred to clause 3 of the contract and claimed that the Respondent was not allowed to sign a contract with any club being represented by another agent or by himself and in case of breach of said provision, the Respondent would have to pay the Claimant a penalty within 14 days from signing the relevant employment contract.

11. In his reply to the claim, the Respondent first of all alleged that the claim of the agent was time barred arguing that “According to Procedural Rules, the Regulations on the Status and Transfer of Players and legislation in force in Country B – the country where the contract was concluded-, the claim should have been lodged with FIFA no later than 3 months after termination of the contract or knowledge of any breach”.

12. In addition, the Respondent rejected the Claimant´s claim and stated that clause 3 of the contract was null and void since it is expressly prohibited by the FIFA Regulations, Law of Country B and the regulations of the FA of Country B.

13. The Respondent further alleged that after the conclusion of the contract on 2 October 2013, the Claimant did not provide any service to the Respondent and only contacted him three or four times during the term of the contract. The Respondent argued that the Claimant allegedly never informed him about any possible transfer and/or any concrete offer which led the Respondent to believe that the contract was no longer valid.

14. In continuation, the Respondent explained having signed his employment contract with Club F without the Claimant’s involvement and, therefore, the Respondent deemed that he did not owe any commission to him. The Respondent enclosed a declaration signed by his former club, Club G (hereinafter: “Club G”) stating that the Claimant never contacted them and the transfer of the Respondent from Club G to Club F was done without the Claimant´s intervention.

15. Finally, the Respondent alleged that the penalty requested by the Claimant was abusive and stated that if the Players’ Status Committee decided that the Respondent must pay an amount to the Claimant, this amount should be calculated equitably and considering all the facts of the case.

16. In his replica, the Claimant affirmed that the claim is not time-barred and that the Respondent did not specify which provision establishes a three months rule.

17. Equally, the Claimant rejected the Respondent´s allegation that clause 3 of the contract was null and void. The Claimant stated that there is no rule prohibiting these kind of provisions and, in fact, the Bureau of the Players’ Status Committee in its meeting of 27 August 1998 agreed that “players’ agents may, nevertheless, claim commission if they have not been actively involved in a transfer, if a clause to this effect is explicitly and unequivocally stipulated in the relevant representation agreement”.

18. Moreover, the Claimant argued that the Respondent had no reason to believe that the contract was no longer valid and that this allegation is contradictory with the termination sent by the Respondent´s legal representative on 7 October 2014. What is more, the Claimant stated that the Respondent´s allegations that he did not provide any service to the player are unfounded. In this respect, the Claimant enclosed two emails addressed to the Respondent.

19. In his duplica, the Respondent reiterated his previous allegations and claimed that the Claimant´s claim “should be considered false and not proved”. The Respondent enclosed a declaration issued by Club F dated 10 February 2017 stating that the transfer of the player from Club G to Club F “was made without the intervention of any agent of sports intermediary” and that the Respondent “has never been presented or offered” to them by the Claimant.

20. According to the information contained in the FIFA Transfer Matching System (TMS), on 29 September 2014 the player concluded an employment contract with Club F valid from 28 September 2014 until 30 June 2017 without the assistance of any players´ agent. Club F compromised to pay to the player the following remuneration: -EUR 550,000 annual wages related to the season 2014/2015; -EUR 650,000 annual wages related to the season 2015/2016 and –EUR 750,000 annual wages related to the season 2016/2017. On 19 February 2015, the player and Club F terminated the employment contract effective from 1 February 2015.

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 9 February 2015. 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 in front of FIFA on 9 February 2015, 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 Federation of Country B and a Player of Country D, regarding an alleged outstanding commission.

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

6. The Single Judge then reverted to the Respondent´s argument, according to whom the present matter is barred by the statute of limitations based on domestic law.

7. In this regard, the Single Judge referred to art. 30 par. 4 of the Regulations, which stipulate, inter alia, that the Players’ Status Committee shall not hear any case subject to the said Regulations if more than two years have elapsed since the event giving rise to the dispute. Along these lines, the Single Judge emphasised that, evidently, the Regulations applicable in order to determine the timeliness of a claim lodged before FIFA are FIFA´s Regulations and not any law applicable at national level.

8. With the above in mind, the Single Judge pointed out that on 9 February 2015 the Claimant lodged the present claim in front of FIFA´s deciding bodies based on the clause 3 of the contract. In addition, the Single Judge remarked that the event giving rise to the dispute was the transfer of the player to the Club of Country E, Club F which according to the FIFA Transfer Marching System (TMS) took place on 29 September 2014.

9. In conclusion, the Single Judge determined that the agent’s request based on the clause 3 of the contract had been submitted on 9 February 2015, i.e. within said two years’ period of time from the event giving rise to the dispute, i.e. 29 September 2014 and thus not barred by the statute of limitations in accordance with the art. 30 par. 4 of the Regulations

10. 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 it considered pertinent for the assessment of the matter at hand.

11. In doing so and to start with, the Single Judge took note that it remained undisputed that, on 2 October 2013, the Claimant and the Respondent concluded the contract valid until 1 October 2015, under the terms of which the Claimant was entitled to receive from the Respondent a commission amounting to “10 % of the total amount of the player´s contracts”.

12. Furthermore, the Single Judge recalled that clause 3 of the contract, the parties agreed that “on the power of this agreement, the player´s agent [i.e. the Claimant] receives exclusives rights to negotiate and represent the player [i.e. the Respondent] in any transfer activities regarding all CLUBS WORLDWIDE. The player [i.e. the Respondent] is forbidden to sign a contract with any club, using the representation or help of any 3rd parties or himself alone. In such case the Player [i.e. the Respondent] will be obliged to pay the agent [i.e. the Claimant], within 14 days from the signing of the contract, a penalty in amount of 15% from the total amount of the signed contract”.

13. At this stage, the Single Judge observed that the Claimant had lodged the present claim against the Respondent requesting the amount of EUR 225,000 corresponding to 15 % of the Respondent´s gross income from the employment contract allegedly concluded between the Respondent and Club F. Equally, the Single Judge noted that the Claimant deemed that the entitlement to said 15% arose from the penalty agreed in clause 3 of the contract.

14. In continuation, the Single Judge noted that in his reply, the Respondent did not contest having concluded an employment contract with Club F, however, alleged that the Claimant was not entitled to receive any commission since the relevant employment contract had been concluded without the Claimant´s involvement.

15. Moreover, the Single Judge acknowledged that the Respondent alleged that clause 3 of the contract was null and void since it was expressly prohibited by the Regulations and domestic law.

16. In this context, the Single Judge confirmed that according to the information contained in TMS, on 29 September 2014 the Respondent concluded an employment contract with Club F valid from 28 September 2014 until 30 June 2017 which was prematurely terminated by the parties on 1 February 2015.

17. Having duly examined the argumentation and documentation put forward by both parties, the Single Judge turned his attention to the fact that both parties acknowledged that the Claimant was neither involved in the negotiations with Club F nor in the conclusion of the employment contract with said club.

18. Having said this, the Single Judge recalled, as a general remark, that the activity of players’ agents is a function intended to bring players and clubs together so as to establish working relations, i.e. the negotiations led by a players’ agent should culminate in the signing of an employment contract between a player and a club. In this context, the Single Judge referred to a letter addressed to all licensed players’ agents in June 1999, whereby the Bureau of the Players’ Status Committee stated that it had discussed at its meeting in Zurich on 27 August 1998 cases in which players’ agents had requested a commission from players, even though the relevant employment contracts had been concluded between the players and the clubs without the agents’ involvements. In this respect, the Bureau had held that players’ agents’ activities must be causal to the conclusion of employment contracts and that, as a general rule, if an employment contract is signed without the involvement of a particular players’ agent, the player concerned does not owe any commission to the agent. This being said, the Single Judge recalled that this legal interpretation of the Bureau of the Players’ Status Committee is still applicable and has since been confirmed by the Players’ Status Committee in its jurisprudence.

19. Notwithstanding the above, and referring again to the aforementioned letter, the Single Judge went on to observe that the Bureau had also agreed that players’ agents may, nevertheless, claim commission if they have not been actively involved in a transfer, if a clause to this effect is explicitly and unequivocally stipulated in the relevant representation agreement.

20. With the aforementioned considerations in mind, the Single Judge turned his attention to clause 3 of the contract and emphasised that said provision entitled the Claimant to a lump sum penalty payment of 15% of the Respondent´s total income, in case, he would sign an employment contract without the involvement of the Claimant.

21. Indeed, the Single Judge was of the opinion that such provision contained an explicit and unequivocal clause entitling the Claimant to claim the relevant penalty following his exclusion from the negotiations between the Respondent and Club F and which had culminated in the signing of the employment contract between the latter and the Respondent on 29 September 2014.

22. Furthermore, the Single Judge was keen to underline that the relevant employment contract signed on 29 September 2014 between the Respondent and Club F was concluded during the validity of the contract (i.e. from 2 October 2013 until 1 October 2015).

23. In this context, regarding the termination of the contract done by the Respondent on 7 October 2014, the Single Judge underlined that the Respondent failed to prove having any just cause for said termination. What is more, the relevant termination was notified to the Claimant 8 days after the conclusion of the employment contract between the Respondent and Club F.

24. On account of all the above, considering the basic legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, the Single Judge established that, in principle, and in accordance with clause 3 of the contract, the Respondent has to pay to the Claimant a penalty lump sum payment of 15% of the Respondent’s annual gross income according to the employment contract.

25. Nevertheless, the Single Judge outlined that, according to TMS, the employment contract concluded on 29 September 2014 between the Respondent and Club F was prematurely terminated on 1 February 2015. Therefore, the Single Judge concluded that the employment relationship between the Claimant and the Respondent had in fact lasted 5 months only.

26. Consequently, considering that the total salary which the Respondent actually received during the 5 months of validity of the employment contract amounted to EUR 229,165, the Single Judge deemed that the Claimant was entitled to receive from the Respondent the amount of EUR 34,375.

27. In addition, the Single Judge took note about the Claimant´s request for application of a 5% annual interest as from 13 October 2014 over the outstanding amount. In this respect, the Single Judge deemed. That evidently interest cannot run over the penalty for lack of contractual basis.

28. In conclusion, the Single Judge decided that the claim of the Claimant is partially accepted and that the Respondent has to pay to the Claimant the total amount of EUR 34,375 as penalty.

29. 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.

30. 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 EUR 292,500. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

31. Considering the particular circumstances of the present matter, the Single Judge determined the costs of the current proceedings in the amount of CHF 10,000 and held that such costs have to be borne by both parties in equal shares.

32. Finally, the Single Judge concluded his deliberations by establishing that any other claim of the Claimant is rejected.

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, Player C, has to pay to the Claimant, Agent A, within 30 days as from the date of notification of this decision, the outstanding amount of EUR 34,375.

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

4. If the aforementioned amount is not paid within the aforementioned deadline, an interest rate of 5% per year will apply as of the expiry of the fixed time limit and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

5. The final costs of the proceedings amounting to CHF 10,000 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, 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.

5.2 The amount of CHF 5,000 has to be paid by the Respondent, Player 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

6. The Claimant, Agent A, is directed to inform the Respondent, Player C, directly and immediately of the account number to which the remittance under points 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. 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