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 18 August 2016

Decision of the Single Judge of the Players’ Status Committee

passed in Zurich, Switzerland, on 18 August 2016,

by

Johan van Gaalen (South Africa)

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 in connection with the Player E.

I. Facts of the case

1. On 4 June 2012, the Players’ Agent A, licensed by the Football Association of country B (hereinafter: the Claimant), and the club from country D, Club C (hereinafter: the Respondent), entered into a commission agreement (hereinafter: the agreement), concerning the transfer of the Player E (hereinafter: the player) from the Club F of country G (hereinafter: Club F), to the Respondent, in accordance with which the Claimant was entitled to receive from the Respondent, “a commission valued at 7.5% (..) of the total value of the contract in its first 2 (...) years and 10% (...) of any year added to the Player’s contract or New contract.

2. In accordance with point 5 of the agreement, the “Total value of the first 2 (..) years of the contract is $ 2,100,000.00 (..)”. As a result, the commission due to the Claimant “for the guaranteed part of the contract” amounted to USD 157,500 and had to be paid by no later than 1 December 2012.

3. Furthermore, point 9 of the agreement stipulated that in case the Respondent transferred the player “for a monetary consideration” or “a player exchange”, the Claimant was entitled to receive from the Respondent “an amount equivalent to the outstanding commission as detailed in point 5 above”.

4. Equally, “in the event of any upgrade in the Player’s contract, the Agent [i.e. the Claimant] shall be entitled to an equivalent of 10% of the increase in the contract”, whereas “in the event the Club [i.e. the Respondent] takes up the option on the Player for season 2014/2015, the Agent [i.e. the Claimant] shall be entitled to a commission valued at 10% of the value of the Player’s salary”.

5. On 27 November 2014, the Claimant lodged a claim with FIFA against the Respondent, claiming that the latter failed to pay his commission due in connection with the player’s transfer corresponding to twice the sum of USD 157,000 according to points 5 and 9 of the agreement.

6. Consequently, the Claimant requested the total amount of USD 315,000, plus interest at a rate of 15% over the first amount claimed of USD 157,000, as of 1 December 2012, and over the second amount claimed of USD 157,000, as of 1 July 2013.

7. In its response on 18 May 2015, the Respondent provided FIFA with the “transfer draft of the following amounts made” to the Claimant: “Euro 250,000 in 22 November 2011”; “Euro 3,500 in 22 November 2011”; “USD $31,250 deducted from his total amount for his shared amount to the solidarity contribution of player “H” in compliance with the contract signed with him in 1 July 2013”. Furthermore, the Respondent replied that “the remaining outstanding amount will be transferred to Mr. Players’ Agent A [i.e. the Claimant] as soon as possible”.

8. In his replica on 9 June 2015, the Claimant informed FIFA that such payments made by the Respondent on 22 November 2011 were not related to the present matter.

9. Subsequently on 25 June 2015, the Claimant requested FIFA to suspend the proceedings as the parties concluded a settlement agreement “in the above-captioned proceedings”.

10. Notwithstanding the above, on 15 October 2015, the Claimant requested FIFA to resume the proceedings alleging inter alia that “no agreement has been reached and no payment had been done by the Respondent”.

11. In its subsequent submission on 7 November 2015, the Respondent provided FIFA with a copy of the settlement agreement (hereinafter: the settlement agreement) apparently concluded on 21 June 2015 and specified that “we reserve our rights to file an appeal in relation to the Decision. The existence of dues scheduling agreement”.

12. As per the settlement agreement, the Respondent undertook to pay to the Claimant EUR 650,000 as well as USD 701,200 corresponding to EUR 650,000 for the Coach I, USD 157,500 for the Player E, USD 187,500 for the Player H and USD 356,200 for the Player J. The amounts in question were to be paid as follows: EUR 325,000 by no later than 1 September 2015; EUR 325,000 by no later than 1 December 2015; USD 200,000 by no later than 1 April 2016; USD 250,000 by no later than 1 August 2016 and USD 251,200 by no later than 1 October 2016.

13. According to point 2 of the settlement agreement, “through this payment, the Players’ Agent [i.e. the Claimant] will have no additional claims, present or future, against the club [i.e. the Respondent]”.

14. In addition, point 6 of the settlement agreement established that “once the amounts provided for in the present settlement agreement are paid by the Club [i.e. the Respondent] to the Player’s Agent A [i.e. the Claimant], the latter shall promptly inform the Players’ Status Committee of FIFA and the Court of Arbitration for Sport that a settlement has been concluded and that the actions are withdrawn, meanwhile, and until their final payment, the procedure will be suspended and if the payments are not done, they will be resumed”.

15. Finally, point 9 of the settlement agreement indicated that “in case one of the payments is not made within 7 (...) days from due date, all the sums provided for in this agreement [i.e. the settlement agreement] shall be immediately due” and “if one of the payments is not made in due time and all the rest of the sums provided in this Settlement Agreement become immediately payable, the Players’ Agent A [i.e. the Claimant] will seek enforcement through the Football Association of country D and the Asian Football Confederation (AFC)”.

16. Finally, in its last comments on 27 November 2015, the Claimant requested FIFA to disregard the settlement agreement as it had not been respected by the Respondent.

17. In this regard, the Claimant also insisted on the fact that he bases his claim on the initial agreement concluded by the parties. According to his correspondence dated 27 November 2015, the Claimant mentioned that “[U]p to the present stage the two first instalments of the Settlement Agreement should have been paid. However, we do not acknowledge receipt of these payments. Accordingly, we make reference to our precedent communications and herein request that the Settlement Agreement is disregarded as it has not been respect by the Respondent and therefore a formal decision shall be rendered by the Players’ Status Committee on the basis of our claim”.

18. In spite of having been asked to do so, the Respondent did not provide its final position on the claim.

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 in 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 2014 and 2015). In view of the fact that the present matter was submitted to FIFA on 27 November 2014, the Players’ Status Committee concluded that the 2014 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 of the Players’ Status Committee analysed which edition of the FIFA Players’ Agents Regulations should be applicable. In this respect, the Single Judge 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 27 November 2014, the 2008 edition of the Players’ Agents Regulations (hereinafter: the Regulations) is applicable to the matter in hand.

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 of the Players’ Status Committee continued his deliberations by indicating that the present matter concerned 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.

5. As a consequence, the Single Judge of the Players’ Status Committee is competent 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. However, the Single Judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence that he considered pertinent for the assessment of the matter at hand.

7. In doing so and to begin with, the Single Judge acknowledged that, on 4 June 2012, the parties concluded a commission agreement in relation to the transfer of the player.

8. Moreover, the Single Judge noticed that during the proceedings of the present matter, the Claimant and the Respondent had concluded another agreement, i.e the settlement agreement, on 21 June 2015 in order to settle the present dispute amicably.

9. Furthermore, the Single Judge noted that on the one hand, the Claimant requested FIFA to suspend the proceedings in the present dispute as the parties were about to conclude an amicable settlement. Moreover, in his correspondence dated 25 June 2015 the Claimant confirmed that the parties had concluded a settlement agreement. On the other hand, on 15 October 2015, the Claimant requested FIFA to resume the proceedings in the present dispute as according to him, “[N]o agreement has been reached and no payment had been done by the Respondent”. In other words, nevertheless the parties had concluded a settlement agreement, the Claimant inter alia insisted to disregard such settlement agreement and to maintain his claim on the initial agreement.

10. With those considerations in mind, the Single Judge recalled that the Claimant and the Respondent concluded two agreements, the agreement on 4 June 2012, and the settlement agreement on 21 June 2015. Moreover, the Single Judge acknowledged that both agreements were concluded by the same parties at the present dispute and related to the same contractual object.

11. In this respect, the Single Judge deemed that a new valid agreement concluded by the same parties on the same contractual object extinguishes the rights and obligations that were in effect under the old agreement, thus, the Single Judge was keen to emphasise that, the settlement agreement concluded by the Claimant and the Respondent on 21 June 2015 replaced the initial agreement.

12. In continuation and for the sake of good order, the Single Judge referred to point 6 of the settlement agreement, which established that the relevant proceedings with FIFA’s Players’ Status Committee will be resumed “if the payments are not done”. However, the Single Judge was eager to emphasise that such provision does not hinder the validity of the settlement agreement. Equally, the Single Judge deemed that the foregoing was corroborated by the fact that point 9 of the settlement agreement obliged the Claimant to seek enforcement through the Football Association of country D and the Asian Football Confederation.

13. Therefore, considering the fact that the Claimant insisted on basing his claim on the initial agreement nevertheless having already concluded a settlement agreement with the Respondent, the Single Judge held that the matter at hand had been settled amicably and, therefore, decided to reject the Claimant’s complaint.

14. As a result, the Single Judge decided to reject the claim of the Claimant.

15. 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.

16. 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.

17. 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 USD 315,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

18. 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 15,000, which shall be borne by the Claimant.

***

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

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

2. The final costs of the proceedings in the amount of CHF 15,000 are to be paid by the Claimant, Players’ Agent A. Considering that the latter already paid the amount of CHF 5,000 as advance of costs at the start of the present proceedings, the Claimant, Players’ Agent A, has to pay the remaining amount of CHF 10,000 within 30 days as from the date of notification of the present decision 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

*****

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