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 17 January 2017

Decision of the Single Judge of the Players’ Status Committee

passed in Zurich, Switzerland, on 17 January 2017,

by

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 club

Club C, Country D

as “Respondent”

regarding a contractual dispute arisen between the parties.

I. Facts of the case

1. On 1 May 2011, Players’ Agent A (hereinafter: the Claimant), licensed by the Football Association of Country B, and the Player E (hereinafter: the player) signed a representation contract (hereinafter: the contract) valid for 24 months and under the terms of which the Claimant was entitled to receive “10% of the player’s annual basic gross income for the entire duration of the relevant playing contract, including any signing-on fee/down payment, notwithstanding the players’ agent’s involvement and the bringing about of the certain transaction or contract negotiation, payable as follows: annual payments at the end of each contractual year (i.e. on 30 June of the relevant year). The player hereby gives his consent for the club to pay the players’ agent [i.e. the Claimant] on his behalf”.

2. On 13 August 2011, the Claimant and the Club of Country D, Club C (hereinafter: the Respondent) concluded an agreement (hereinafter: the agreement) in connexion with the transfer of the player, according to which “in case of conclusion of a transfer contract regarding the transfer of football player E [i.e. the player] from Club F( City of Country G) to Club C(City of Country D) [i.e. the Respondent] our club obliges itself to pay You [i.e. the Claimant] […] 10% of the player’s salary amount during the validity of the employment contract with Club C[i.e. the Respondent]”.

3. On 29 August 2011, the Club of Country G, Club F, and the Respondent concluded a transfer agreement for the transfer of the player from Club F to the Respondent for a transfer fee amounting to USD 500,000.

4. On 30 August 2011, the player and the Respondent signed an employment contract valid from the date of signature until 30 June 2014, under the terms of which the player was entitled to receive from the Respondent the yearly salary of EUR 600,000 net.

5. On 31 August 2011, the player signed a document called “DECLARATION” (hereinafter: the declaration) in accordance with which the player gave his written consent “for Club C (City of Country D) [i.e. the Respondent] to pay my [i.e. the player] agent, Players’ Agent A [i.e. the Claimant], […] on my behalf, as agreed upon in Clause 2 of our Representation Contract [i.e. the contract]”.

6. On 21 March as 2014, the Claimant lodged a claim with FIFA against the Respondent arguing that the latter had failed to respect its contractual obligations. In this respect, the Claimant explained that the Respondent undertook to pay to the Claimant the commission of 10% of the player’s salary with the Respondent. However, the Claimant maintained that the Respondent never paid anything to him.

7. The Claimant explained to have acted on behalf of the player during the transfer of the player to the Respondent. He maintained to have agreed with the Respondent that the latter would pay the Claimant’s commission on behalf of the player. The Claimant further maintained that after the conclusion of the employment contract between the player and the Respondent, the player gave his written consent to the Respondent to pay the Claimant’s commission on his behalf. Therefore, the Claimant deemed to have complied with art. 19 par. 4 of the Players’ Agents Regulations.

8. Moreover, the Claimant explained that as the agreement did not provide for an exact date of payment of the Claimant’s commission by the Respondent, the general contractual terms of the contract agreed upon between the player and the Claimant should apply. Therefore, the Claimant referred to the contract which stipulated that the commission was payable in “annual payments at the end of each contractual year (i.e. on 30 June of the relevant year)”. Therefore, the Claimant deemed to be entitled to receive from the Respondent EUR 60,000 on 30 June 2012, EUR 60,000 on 30 June 2013 and EUR 60,000 on 30 June 2014 respectively.

9. Consequently, the Claimant requested from the Respondent the total amount of EUR 180,000, i.e. 10% of the player’s total salary with the Respondent allegedly amounting to EUR 1,800,000, as well as 5% interest.

10. On 11 June 2014, the Respondent replied to the Claimant’s claim and rejected it in its entirety.

11. The Respondent firstly contested the competence of FIFA to deal with the present matter as the Dispute Resolution Chamber of the Football Federation of Country D had already passed a decision in the same matter. In this respect, the Respondent provided the decision of the Football Federation of Country D dated 23 January 2014, according to which it declared itself incompetent to hear the matter which had an international dimension and referred the parties concerned directly to the decision making bodies of FIFA.

12. As to the substance, the Respondent alleged that the Claimant had already concluded a contract with the player and therefore that he was “forbidden from entering into any kind of contract or relationship with the Club [i.e. the Respondent]”.

13. Furthermore, the Respondent argued that the agreement “does not have an official status: no reference number, not registered in the Club, not original signature” and therefore that the agreement can “only be considered as a preliminary arrangement between the Club [i.e. the Respondent] and the Agent [i.e. the Claimant]” and cannot be considered as “a unilateral conditional transaction in terms of the Civil Code of Country D”. The Respondent further added that such “agreement” did not comply with FIFA regulations, in particular art. 19 par. 5 of the Players’ Agent Regulations.

14. Alternatively, the Respondent requested FIFA to reduce the claimed commission since the player allegedly left the club in 2013 and was transferred to the Club of Country H, Club J.

15. Finally, the Respondent deemed that there was no contractual obligation between the parties to the dispute and that the Respondent had no payment obligation towards the Claimant.

16. On 9 March 2015, the Claimant replied to the allegation of the Respondent by stating that FIFA has jurisdiction to hear the present dispute as Football Federation of Country D did not enter into the merits of the dispute at all, only referring the parties concerned to FIFA.

17. As regards the substance, the Claimant deemed that it was irrelevant whether there was a double representation or conflict of interest since the only consequence of double representation is sporting sanctions that could be imposed on agents, but not the invalidity of an agreement. Moreover, the Claimant stressed that the agreement was not a “preliminary agreement” since it “does not say that the Parties would enter into another final agreement later on”.

18. The Claimant also argued that even if the agreement would not contain all essentialia negotii of a representation contract, this would not result in the invalidity of the agreement. The Claimant deemed that the Players’ Agent Regulations provide for the imposition of sanctions in case agents would not comply with such Regulations, however the agreements concluded between the parties concerned remain valid and binding upon the parties. Consequently, the Claimant reiterated his initial claim.

19. In its final comments dated 28 April 2015, the Respondent reiterated its position. In particular, the Respondent deemed that the “agent [i.e. the Claimant] is wrong and misguided when he asserts that the Football Federation of Country D had not entered into the merits of the matter” as the grounds of the Football Federation of Country D Decision stated “that no valid representation contract was ever registered with the FUR”. Consequently, the Respondent was of the opinion that FIFA was not competent pursuant to the principle of res iudicata.

20. The Respondent further stated that the Claimant had acted “for the player” and that it had not committed to pay anything to the Claimant. In this regard, the Respondent argued that the agreement was not a valid title, which would entitle the Claimant to be remunerated.

21. Alternatively, should any commission be payable to the Claimant, the player himself should be responsible for making the payment of such commission.

***

II. Considerations of the Single Judge of the Players’ Status Committee

1. First of all, the Single Judge of the Players’ Status Committee analysed which procedural rules are applicable to the matter at hand. In this respect, he referred to art. 21 of the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (editions 2014 and 2012). The present matter was submitted to FIFA on 21 March 2014. Therefore, the Single Judge concluded that the 2012 edition of the Procedural Rules (hereinafter: the Procedural Rules) is applicable to the matter at hand.

2. Subsequently, the Single Judge analysed which edition of the FIFA Players’ Agent 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, considering that the present claim was lodged on 21 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. 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 of Country D, regarding an allegedly outstanding commission.

5. As a consequence, the Single Judge would, in principle, be competent to deal with the matter at stake, which has an international dimension (cf. art. 30 par. 2 of the Regulations).

6. However, the Single Judge acknowledged that the Respondent had contested the competence of FIFA’s decision-making body invoking the principle of the res iudicata. In this respect, the Respondent had referred to the decision passed by the Dispute Resolution Chamber of the Football Federation of Country D on 23 January 2014, in accordance with which the Football Federation of Country D declared itself incompetent to hear the dispute at hand due to its international dimension and advised the parties to refer the matter to FIFA.

7. The Single Judge further noted that the Claimant, for his part, had rejected such allegation and insisted that FIFA has jurisdiction to deal with the present matter.

8. Accordingly, the Single Judge deemed it appropriate to briefly recall that on the basis of the principle of res iudicata, a decision-making body is not in a position to deal with the substance of a case in the event that another deciding body has already dealt with the same matter by passing a final and binding decision. Indeed, the parties to the dispute as well as the deciding authority are bound by the final and binding decision previously passed.

9. In view of the above, the Single Judge recalled that the decision that was taken by the Football Federation of Country D on 23 January 2014 was only related to the admissibility of the relevant claim of the Claimant. Equally, the Single Judge also recalled that no decision as to the substance of the dispute was passed by the Football Federation of Country Don 23 January 2014.

10. As a result thereof and in particular considering that on 23 January 2014 no decision was taken by the Football Federation of Country D as to the substance of the matter at stake, the Single Judge decided that, in casu, the principle of res iudicata did not apply. Therefore, the Single Judge is competent to take a decision on the present dispute.

11. 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.

12. In doing so, the Single Judge first took note that, on 1 May 2011, the Claimant and the player had concluded a representation contract according to which the Claimant was entitled to receive from the player “10% of the player’s annual basic gross income for the entire duration of the relevant playing contract, including any signing-on fee/down payment, notwithstanding the players’ agent’s involvement and the bringing about of the certain transaction or contract negotiation, payable as follows: annual payments at the end of each contractual year (i.e. on 30 June of the relevant year). The player hereby gives his consent for the club to pay the players’ agent [i.e. the Claimant] on his behalf”.

13. Moreover, the Single Judge observed that, on 13 August 2011, the Claimant and the Respondent had concluded an agreement in connection with the transfer of the player in accordance with which “in case of conclusion of a transfer contract regarding the transfer of football player, Player E[i.e. the player] from Club F(City of Country G) to Club C(City of Country D) [i.e. the Respondent] our club obliges itself to pay You [i.e. the agent] […] 10% of the player’s salary amount during the validity of the employment contract with Club C [i.e. the Respondent]”.

14. Equally, the Single Judge remarked that, on 31 August 2011, i.e. after the transaction, the player gave his written consent “for Club C (City of Country D) [i.e. the Respondent] to pay my [i.e. the player] agent,Players’ Agent A [i.e. the Claimant], […] on my behalf, as agreed upon in Clause 2 of our Representation Contract [i.e. the contract]”.

15. In continuation, the Single Judge observed that, in his claim to FIFA, the Claimant had requested the payment of EUR 180,000, corresponding to 10% of the player’s total salary with the Respondent, i.e. EUR 1,800,000 for three years, as well as 5% interest. Furthermore and in the same context, the Single Judge acknowledged that, for its part, the Respondent had rejected the claim of the Claimant arguing that the latter had breached art. 19 par. 8 of the Regulations by also representing the player. Equally, the Respondent deemed that the agreement was merely a preliminary arrangement and not a contract as it did not meet the formal requirements of a contract and did not comply with art. 19 par. 5 of the Regulations.

16. Alternatively, the Respondent requested FIFA to reduce the claimed commission since the player allegedly left the club in 2013 and was transferred to the Club of Country H, Club J.

17. Finally, the Single Judge took note that, in one written statement, the player had confirmed having given his written consent for the Respondent to pay the Claimant’s commission on his behalf.

18. Bearing in mind all the aforementioned and to begin with, the Single Judge was eager to once again emphasize that the agreement had undisputedly been signed by the Respondent. Hence, from the Single Judge’s point of view as well as in accordance with his well-established jurisprudence, regardless of whether a violation of art. 19 par. 8 of the Regulations had in casu occurred or not, the document in question had to be considered valid and binding upon the Claimant and the Respondent.

19. Furthermore, contrary to the allegations of the Respondent, the Single Judge was eager to emphasise that the non-compliance of pure formalities cannot per se affect the validity of a contract as long as the essentialia negotii are contained in the relevant contract which is the case in the agreement at stake. Therefore, such arguments brought by the Respondent have to be rejected.

20. Equally, the Single Judge pointed out that the involvement of the Claimant in connection with the transfer of the player to the Respondent had remained uncontested.

21. In continuation, the Single Judge turned its attention to the contents of art. 19 par. 4 of the Regulations and recalled that the provision in question specified, inter alia, the following: “Payment shall be made exclusively by the client of the players’ agent directly to the players’ agent. However, after the conclusion of the relevant transaction, the player may give his written consent for the club to pay the player’s agent on his behalf”. As to that, the Single Judge pointed out once again that in accordance with the documentation on file, the player had given his consent for the Respondent to pay the Claimant’s commission on his behalf.

22. In light of all the aforementioned, considering the basic legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, bearing in mind the contents of the agreement as well as recalling the content of art. 19 par. 4 of the Regulations and taking into account the fact that the player had given his consent for the Claimant’s commission to be paid by the Respondent, the Single Judge came to the conclusion that, in order to comply with its contractual obligations towards the Claimant, the Respondent is liable to pay the Claimant as per the agreement.

23. Having decided the aforementioned and with regard to the Respondent’s alternative request to reduce the commission to be paid to the Claimant as the player left the Respondent before the expiry of his contract, the Single Judge acknowledged that it remained undisputed that the player was indeed transferred to the Club of Country H, Club J in 2013.

24. Equally, the Single Judge took note that according to the contract the relevant amount of commission had to be paid at the end of each contractual year, i.e. on 30 June of the relevant year. The Single Judge also remarked that the player gave the Respondent the written consent to pay the Claimant on his behalf under the terms of the contract concluded between the player and the Claimant. Therefore, the Single Judge held that the Respondent was liable to pay to the Respondent 10% of the player’s salary at the end of each contractual year, i.e. EUR 60,000.

25. Furthermore, the Single Judge acknowledged that pursuant to the agreement the Respondent obliged itself to pay the Claimant 10% of the player’s salary during the validity of the employment contract with the Respondent.

26. Consequently, the Single Judge held that the Respondent was liable to pay to the Claimant the amount of EUR 120,000, corresponding to 10% of the player’s salary during the validity of the employment contract with the Respondent, i.e. until 2013.

27. In conclusion, the Single Judge decided that the claim of the Claimant is admissible as well as partially accepted and that the Respondent has to pay to the Claimant EUR 120,000, plus an interest at a rate of 5% per year on the said amount from 21 March 2014 until the date of effective payment.

28. 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.

29. In this respect, the Single Judge reiterated that the claim of the Claimant is partially accepted. Therefore, the Single Judge concluded that both parties have to bear the entire costs of the current proceedings in front of FIFA.

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. Consequently and taking into account that the total amount at dispute in the present matter is higher than CHF 150,000 but lower than CHF 200,000, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 20,000.

31. In conclusion, considering the specificity of the matter as well as taking into account that the case at hand was adjudicated by the Single Judge and not by Players’ Status Committee in corpore, the Single Judge determined the costs of the current proceedings to the amount of CHF 18,000.

32. Therefore, the Claimant and the Respondent have to pay CHF 5,000 and CHF 13,000 respectively 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 admissible.

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

3. The Respondent, Club C, has to pay to the Claimant, Players’ Agent A, within 30 days as from the date of notification of this decision, the amount of EUR 120,000, plus 5% interest p.a. on the said amount from 21 March 2014 until the date of effective payment.

4. If the aforementioned, sum plus interest, 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.

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

6. The final costs of the proceedings in the amount of CHF 18,000 are to be paid by both parties to FIFA, within 30 days as from the date of notification of the present decision, as follows:

6.1 The amount of CHF 5,000 has to be paid by the Claimant, Players’ Agent A. Given that the latter has already paid the amount of CHF 5,000 as advance of costs at the start of the present proceedings, the Claimant, Players’ Agent A, is exempted from paying the abovementioned costs of the proceedings.

6.2 The amount of CHF 13,000 has to be paid by the Respondent, Club C, 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

7. The Claimant, Players’ Agent A, is directed to inform the Respondent, Club C, immediately and directly of the account number to which the remittance under point 3. 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).

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