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 22 November 2016

Decision of the Single Judge of the Players’ Status Committee

passed in Zurich, Switzerland, on 22 November 2016,

by

Geoff Thompson (England)

Single Judge of the Players’ Status Committee,

on the claim presented by the players’ agent

Players’ Agent A, from country B

as “Claimant”

against the player

Player C, from country D

as “Respondent”

regarding a contractual dispute between the parties.

I. Facts of the case

1. On 15 December 2013, the players’ agent A (hereinafter: the Claimant / Counter–Respondent), licensed by the Football Association of country B, and the player of country D, Player C (hereinafter: the Respondent / Counter– Claimant) concluded a representation agreement (hereinafter: the agreement) valid from 15 December 2013 until 31 September 2014.

2. Article 2 lit. a) of the agreement stipulated inter alia that the Claimant / Counter-Respondent was entitled to receive from the Respondent / Counter-Claimant for the services he provided, a commission amounting to 10% of the total net remuneration due to the latter as a result of the employment contracts negotiated by the Claimant / Counter-Respondent, payable through a lump sum instalment at the beginning of the said employment contract.

3. On 11 January 2014, the Respondent / Counter-Claimant with the assistance of the Claimant / Counter-Respondent signed a fixed-term employment contract (hereinafter: the employment contract) with Club E (hereinafter: the club), valid from its date of signature until 30 June 2016 and by means of which the Respondent / Counter-Claimant was entitled to receive from the club a total remuneration of USD 700,000 during said contractual period of time.

4. On 11 September 2014, the Claimant / Counter-Respondent lodged a claim with FIFA requesting from the Respondent / Counter-Claimant the payment of the amount of USD 70,000 corresponding to the alleged outstanding commission in accordance with article 2 lit. a) of the agreement, plus interest at a rate of 5% p.a. as from 12 January 2014 as well as legal costs to be borne by the latter.

5. In continuation, the Claimant / Counter-Respondent explained that “[a]pparently, the Respondent [i.e. the Respondent / Counter-Claimant] reached a settlement agreement with Club E [i.e. the club] regarding the early termination of the Employment Contract and signed, without the assistance of the Claimant [i.e. the Claimant / Counter-Respondent] a new contract with the country B professional football of club F.

6. In its reply to the claim lodged against it, the Respondent / Counter-Claimant contested the claim in its entirety and lodged on 24 November 2014 a counter-claim against the Claimant / Counter-Respondent. In this respect, the Respondent / Counter-Claimant firstly alleged the invalidity of article 2 of the agreement and that the version of the agreement submitted by the Claimant / Counter-Respondent attached to his claim was a fake one, as page 1 of this document was not signed by the Respondent / Counter-Claimant.

7. Furthermore, according to the Respondent / Counter-Claimant, article 2 of the agreement states that, “Seul le mandataire [i.e. the Respondent / Counter- Claimant] devra rémunérer l’agent de joueurs pour son travail, bien qu’il puisse autoriser le club à payer en son nom, les quantités correspondantes au travail de l’agent. L’agent de joueurs recevra 10% (dix pour cent) du salaire net total du contrat négocié » (Only the player [i.e. the Respondent / Counter-Claimant] will remunerate the players' agent [i.e. the Claimant / Counter-Respondent] for his work, although he may allow the club to pay on its behalf, the quantities corresponding to the work of the agent. The players' agent will receive 10% (ten percent) of the total net salary of the negotiated contract).

8. Moreover, the Respondent / Counter-Claimant claimed that the Claimant / Counter-Respondent submitted a version of the agreement which was not the one registered at the Football Federation of Country B and that he signed the agreement under pressure, which was pre-dated as of December 2013.

9. Finally, the Respondent / Counter-Claimant requested from the Claimant / Counter-Respondent the amount of 30,000 Euros corresponding to the losses and damages, the amount of 5,000 Euros corresponding to the reimbursement of the costs incurred in these proceedings as well as sporting sanctions to be taken against the latter.

10. In his duplica, the Claimant / Counter-Respondent contested all the allegations of the Respondent / Counter-Claimant and maintained his initial claim. In this regard, he emphasized that “any allegation whatsoever that the Representation Contract [i.e. the agreement] is not an official document nor it is a false document shall be dismissed”.

11. In addition, the Claimant / Counter-Respondent argued that “the only currently valid version of the agreement is the original one in accordance with the written statement addressed by the Football Association of Country B” and amended his initial claim by requesting interest at a rate of 5% p.a. on the amount of USD 70,000, as of 12 January 2014 “until the date of payment” or, alternatively, in the event that the first conclusions would be rejected, he requested “[t]o uphold that the Claimant [i.e. Claimant / Counter-Respondent] assisted the Respondent [i.e. the Respondent / Counter-Claimant] during the negotiations and signature of the Employment Contract and as such shall be entitled to receive a remuneration (cf. Art. 2, par. 1 of the FIFA PAR),

(…),

to order the Respondent to pay the Claimant USD 70,000 in accordance to clause 2 a) of the representation contract since it does not make any difference at the end when compared with clause 2 a) of the Representation Contract, plus interest at a rate of 5% p.a. as from 12 January 2014 until the date of payment (cf. Art. 9, par. 1 lit. g) of the FIFA Procedure Rules (…) “.

12. Equally, the Claimant / Counter-Respondent provided FIFA with the original version of the agreement.

13. In spite of having been asked to do so by FIFA, the Respondent / Counter-Claimant did not provide its final position in the matter at hand.

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 11 September 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 11 September 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 player of 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 15 December 2013, the parties at stake concluded a representation agreement valid from 15 December 2013 until 31 September 2014, by means of which the Claimant / Counter-Respondent was entitled to receive from the Respondent / Counter-Claimant a commission amounting to 10% of the total net remuneration due to the latter as a result of the employment contracts negotiated by the Claimant / Counter-Respondent.

8. Furthermore, the Single Judge also acknowledged that on 11 January 2014, the Respondent / Counter-Claimant with the assistance of the Claimant / Counter-Respondent concluded a fixed term employment contract with the club, under the terms of which he was entitled to receive a total remuneration of USD 700,000 during said contractual period of time.

9. In continuation, the Single Judge observed that in his claim to FIFA, the Claimant / Counter-Respondent had requested the payment of the amount of USD 70,000 corresponding to the 10% outstanding commission on the total remuneration of the Respondent / Counter-Claimant in the amount of USD 700,000 as stipulated in article 2 lit. a) of the agreement as well as interest at a rate of 5% p.a. as from 12 January 2014 until the date of effective payment.

10. Equally, the Single Judge remarked that, in its reply, the Respondent / Counter-Claimant contested the version of the agreement submitted by the Claimant / Counter-Respondent as well as the validity of its article 2 and lodged a counter-claim against the latter on 24 November 2014.

11. Bearing in mind all the aforementioned, the Single Judge firstly turned his attention to the content of article 2 of the agreement at the basis of the present dispute and pointed out that it remained undisputed that the parties had agreed on such provision as the original version of the signed agreement has been provided to FIFA by the Claimant / Counter-Respondent in support of its claim.

12. Having duly examined the argumentation and documentation put forward by both parties, the Single Judge emphasised that it remained undisputed that the parties at the matter at hand were legally bound by article 2 lit. a) of the agreement. For the sake of good order, the Single Judge deemed appropriate to highlight that the original version of the agreement confirms the exact content of article 2 lit. a), which stipulated, translated into English, that “[t]he players’ agent [i.e. the Claimant / Counter-Respondent] will receive 10% of the total net salary of the negotiated contract”.

13. Equally, the Single Judge was eager to emphasise that the participation and the assistance of the Claimant / Counter-Respondent in the negotiation of the employment relationship between the club and the Respondent / Counter-Claimant remained undisputed, as a result of the negotiation an employment contract has been concluded between the club and the Respondent / Counter-Claimant on 11 January 2014.

14. Bearing in mind the aforementioned and the basic legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith as well as bearing in mind the content of article 2 of the agreement and the fact that the conditions for the payment of the commission had in casu been met, the Single Judge decided that the Respondent / Counter-Claimant must pay the Claimant / Counter-Respondent the amount of USD 70,000 according to clause 2 lit. a) of the agreement.

15. In continuation, the Single Judge further observed that the Claimant / Counter-Respondent claimed legal costs. In this respect, the Single Judge referred to art. 18 par. 4 of the Procedural Rules as well as to its longstanding and well-established jurisprudence, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Players’ Status Committee. Consequently, the Single Judge decided to reject the Claimant / Counter-Respondent’s request relating to legal costs.

16. In conclusion, the Single Judge decided that the claim of the Claimant / Counter-Respondent is partially accepted and held that the Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent the total amount of USD 70,000, plus interest at a rate of 5% p.a. on the said amount from 12 January 2014 until the date of effective payment and that any further claims lodged by the Claimant / Counter-Respondent are rejected.

17. Equally and on account of all the above, the Single Judge decided that the counter-claim of the Respondent / Counter- Claimant is rejected.

18. 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, including its 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 (cf. art. 18 par. 1 of the Procedural Rules).

19. In respect of the above, and taking into account that the Claimant / Counter-Respondent’s claim was partially accepted, the Single Judge concluded that both the Claimant / Counter-Respondent as well as the Respondent / Counter-Claimant have to bear a part of the costs of the current proceedings before FIFA.

20. 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 USD 70,000, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 10,000.

21. In conclusion, and considering the particularities of the present matter, the Single Judge determined the costs of the current proceedings to the amount of CHF 10,000. Furthermore, and in line with his aforementioned considerations and taking into account the degree of success, the Single Judge decided that the amount of CHF 3,000 has to be paid by the Claimant / Counter-Respondent and the amount of CHF 7,000 by the Respondent / Counter-Claimant.

***

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

1. The claim of the Claimant / Counter-Respondent, Players’ agent A, is partially accepted.

2. The Respondent / Counter-Claimant, Player C, has to pay to the Claimant / Counter-Respondent, Players’ agent A, within 30 days as from the date of notification of this decision, the total amount of USD 70,000 as well as 5% interest per year on the said amount as from 12 January 2014 until the date of effective payment.

3. Any further claims lodged by the Claimant / Counter-Respondent, Players’ agent A, are rejected.

4. The counter-claim lodged by the Respondent / Counter-Claimant, Player C, is rejected.

5. If the aforementioned sum, 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.

6. The final costs of the proceedings in the amount of CHF 10,000 are to be paid by both parties within 30 days as from the date of notification of this decision, as follows:

6.1. The amount of CHF 7,000 has to be paid by the Respondent / Counter-Claimant Player C, to FIFA. Given that the latter has already paid the amount of CHF 1,000 as advance of costs at the start of the present proceedings, Respondent / Counter-Claimant, Player C, has to pay the amount of CHF 6,000 to FIFA.

6.2. The amount of CHF 3,000 has to be paid by the Claimant / Counter-Respondent, Players’ agent A, to FIFA. Given that the latter has already paid the amount of CHF 2,000 as advance of costs at the start of the present proceedings, the Claimant / Counter-Respondent, Players’ agent A, has to pay the amount of CHF 1,000 to FIFA.

6.3. The above-mentioned amounts under points 6.1 and 6.2 are to be paid 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

7. The Claimant / Counter-Respondent, Players’ agent A, is directed to inform the Respondent / Counter-Claimant, Player C, 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. 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