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 27 July 2016

Decision of the Single Judge of the Players’ Status Committee

passed in Zurich, Switzerland, on 27 July 2016,

by

Mr Geoff Thompson (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 player

Player C, country D

as “Respondent”

regarding a contractual dispute between the parties.

I. Facts of the case

1. On 6 March 2012, the Players’ agent A (hereinafter: “the Claimant”), licensed by the Football Association of country B, and the player from country D, Player C (hereinafter: “the Respondent”), concluded a representation contract (hereinafter: “the contract”) valid from 6 March 2012 until 1 April 2013.

2. Point 1 of the contract stated that “This agreement is a fixed term contract, it will take effect on 06/03/2012 and will terminate on 01/04/2013. The termination of this agreement could be made by the mutual consent only”.

3. Point 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 01/04/2013”.

4. Point 3 of the contract established that “The parties agree 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”.

5. Point 4 of the contract stated that “country B’s 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 and provisions governing job placement and other laws applicable in the territory of the association, as well as international law and applicable treaties”.

6. On 6 November 2013, the Claimant lodged a claim with FIFA against the Respondent requesting the payment of EUR 250,000 as “liquidated damages” in accordance with point 3 of the contract plus interest at a rate of 5% per annum as from the date of claim and until the date of payment.

7. The Claimant further stated that, on 10 September 2012, the Respondent allegedly terminated the contract in writing based on art. 746 of the country B’s Civil Code “due to the improper performance of the services provided” by the Claimant. Moreover, the Claimant explained that, on 24 September 2012, he replied to the Respondent and rejected the termination of the contract alleging that it was null and void since there were no justified grounds. In this respect, the Claimant argued that in accordance with point 1 of the contract the termination can only be done by mutual agreement of the parties.

8. In continuation, 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 22 April 2012 and until December 2012.

9. Moreover, the Claimant alleged that the Respondent signed an employment contract with the club from country F, Club G (hereinafter: “Club G”) without his knowledge and consent despite point 3 of the contract and seemingly being assisted by another agent being “probably Mr H from the company I”.

10. Therefore, the Claimant argued that the Respondent did not have just cause to terminate the contract with him and to sign an employment contract with Club G without his knowledge. The Claimant further argued that in accordance with point 3 of the contract the Respondent was not allowed to sign a contract with any club being represented by another agent or even alone 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 this context, the Claimant alleged that according to well-established jurisprudence of the Players´ Status Committee which was confirmed by the Court of Arbitration for Sport (CAS 2006/A/1019) players ‘agents may nevertheless claim commission even if they have not been actively involved in a transfer, if a clause to this effect is explicitly and unequivocally stipulated in the relevant contract.

12. Furthermore, the Claimant deemed that in accordance with the point 4 of the contract country B’s Law and regulations of the FA of country B including the regulations of FIFA and UEFA are the applicable law.

13. In its reply to the claim, the Respondent rejected the Claimant´s claim and stated that the latter was only entitled to receive a commission in case he took part actively in negotiating the relevant employment contract and his activities were casual to its conclusion.

14. In this regard, the Respondent argued that the only service provided by the Claimant was sending emails enclosing his CV to clubs and some other Claimant´s contacts, however, the Claimant allegedly never informed the Respondent about any possible transfer and/or any concrete offer. Therefore, the Respondent deemed that he did not have any other option than to terminate the contract with just cause and find himself a club.

15. In continuation, the Respondent explained having signed his employment contract with Club G without the Claimant’s involvement and, therefore, the Respondent deemed that he did not owe any commission to him.

16. Furthermore, the Respondent alleged that according to the FIFA´s jurisprudence a player is at liberty to negotiate and sign an employment contract without using the services of an agent taking into account the fundamental principle linked to the player´s right of personality.

17. Finally, the Respondent rejected the application of country B’s Law to the present dispute arguing that, according to the FIFA´s regulations, no national law shall be applied to the merits of this matter.

18. Consequently, the Respondent requested FIFA to dismiss the Claimant´s claim and to condemn the latter to bear the costs.

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 in hand. In this respect, considering that the present matter was submitted to FIFA on 6 November 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 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 with FIFA on 6 November 2013, the edition 2008 of the Players’ Agents Regulations (hereinafter: “the Regulations”) is applicable to the matter at stake as to the substance.

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. In this respect, the Single Judge underlined that the present matter concerns a dispute between a players’ agent licensed by the Football Association of country B and a player from country D regarding a dispute arising from a representation contract between the parties.

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

7. In doing so and to start with, the Single Judge took note that it remained undisputed that, on 6 March 2012, the Claimant and the Respondent concluded the contract valid until 1 April 2013, under the terms of which the Claimant was entitled to receive from the Respondent a commission amounting to 10 % of the total player´s remuneration. Furthermore, the Single Judge recalled that in point 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”.

8. At this stage, the Single Judge observed that the Claimant had lodged the present claim against the Respondent requesting the amount of EUR 250,000 corresponding to 15 % of the Respondent´s gross income from the employment contract allegedly concluded between the Respondent and Club G. Equally, the Claimant deemed that the entitlement to said 15% arose from the penalty agreed in point 3 of the contract.

9. In continuation, the Single Judge noted that in his reply, the Respondent did not contest having concluded an employment contract with Club G, however, alleged that, on 10 September 2012, he terminated the contract with the Claimant and, thus, the latter was not entitled to receive any commission since the relevant employment contract had been concluded without the Claimant´s involvement.

10. Equally, the Single Judge confirmed that according to the information contained in the FIFA Transfer Matching System (TMS), on 7 January 2013 the Respondent concluded an employment contract with Club G valid from 15 January 2013 until 31 May 2016.

11. 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 not involved in the negotiations with Club G and neither in the conclusion of the employment contract with said club. Furthermore, the Single Judge recalled the wording of the contract, in accordance with which the Claimant was entitled to a 10% commission of “the total amount of the player´s contracts, which are signed with clubs, during the term of this Agreement – until 01/04/2013”.

12. 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 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.

13. 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.

14. With the aforementioned considerations in mind, the Single Judge turned his attention to point 3 of the contract and was eager to emphasise that said provision entitled the Claimant to a lump sum penalty payment of 15% of the Respondent´s total gross incomes, “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”. In this respect, the Single Judge recalled that, in his statements of defence, the Respondent claimed that he terminated the contract with just cause, since the Claimant allegedly did not fulfil his duties in accordance with the contract. However, considering that said contract termination was contested by the Claimant and referring to the principle of the burden of proof explicitly stipulated in art. 12 par. 3 of the Procedural Rules, the Single Judge pointed out that that based on the evidence at disposal and the terms agreed in the contract the termination of the contract by the player was without just cause and, therefore, the parties are bound to fulfil their duties in accordance with the contract.

15. With the aforementioned considerations in mind, and reverting to point 3 of the contract, the Single Judge concluded 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 G and which had culminated in the signing of the employment contract between the latter and the Respondent on 7 January 2013.

16. Furthermore, the Single Judge was keen to underline that the relevant employment contract signed on 7 January 2013 between the Respondent and Club G was concluded during the validity of the contract (i.e. from 6 March 2013 until 1 April 2013).

17. 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 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. Consequently, considering that the total salary in accordance with the employment contract amounted to EUR 1,900,000, the Single Judge deemed that the Claimant was entitled to receive from the Respondent the amount of EUR 285,000. However, the Single Judge concluded that in accordance with the legal principle of ultra petitio the Respondent shall pay to the Claimant an amount of EUR 250,000 as requested by the latter.

18. In addition, the Single Judge took note about the Claimant´s request for application of a 5% annual interest as from the date of the claim over the outstanding amount.

19. In conclusion, the Single Judge decided that the claim of the Claimant is accepted and that the Respondent has to pay to the Claimant the total amount of EUR 250,000 as penalty plus interest at a rate of 5% per annum as from 6 November 2013 until the date of payment.

20. Finally, 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, 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.

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. The amount in dispute to be taken into consideration in the present proceedings is EUR 250,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

22. Considering that, in the case in hand, the responsibility of the failure to comply with the agreement and the act can entirely be attributed to the Respondent and taking into account the particular circumstances of the present matter, the Single Judge determined the costs of the current proceedings in the amount of CHF 20,000 and held that such costs have to be borne by the Respondent.

23. In conclusion, the amount of CHF 20,000 has to be paid by the Respondent 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, Players’ agent A, is accepted.

2. The Respondent, Player C, has to pay to the Claimant, Players’ agent A, within 30 days as from the date of notification of this decision, the outstanding amount of EUR 250,000, plus interest at a rate of 5% p.a. over the said amount from 6 November 2013 until the date of effective payment.

3. If the aforementioned sum, plus interest as provided 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. The final costs of the proceedings amounting to CHF 20,000 are to be paid by the Respondent, Player C, within 30 days as from the date of notification of the present decision, as follows:

4.1 The amount of CHF 5,000 has to be paid directly to the Claimant, Players’ agent A;

4.2 The amount of CHF 15,000 has 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. The Claimant, Players’ agent A, is directed to inform the Respondent, Player C, directly and immediately of the account number to which the remittances under points 2. and 4.1 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 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