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 e 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

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 5 September 2010, the Player E (hereinafter: the player) and the players’ agent, Agent A (hereinafter: the Claimant), licensed by the Football Association of country B, concluded a representation contract valid for 24 months as of the date of signature, with an option to extend the term of said contract, upon the written agreement of both parties, provided that the renewed term did not exceed two years.

2. On 10 September 2010, the company “Company F” (hereinafter: the company), represented by the Claimant, and the club from country D, Club C (hereinafter: the Respondent), concluded an agreement (hereinafter: the financial agreement) as a result of the transfer of the player with the Respondent, which was made possible by the intervention of the company which collaborated to ensure that an agreement between the Respondent and the player was reached.

3. On 6 January 2014, the Claimant lodged a claim in front of FIFA against the Respondent, requesting the total amount of EUR 84,764, broken-down as follows:

 EUR 80,000 for the seasons 2011-2012 and 2012-2013, as per the financial agreement (cf. point I.5 below);

 EUR 1,014 as approved expenses incurred from 30 August to 2 September 2012 (cf. points I.7-8 below);

 3,098.98 equivalent to EUR 3,750 as allegedly verbally approved expenses for a laptop with accessories on 24 September 2012 (cf. points I.9-10 below).

4. In this respect, the Claimant alleged that he provided his services “as a consultant” to the Respondent for the transfer of the player from the club from country G, Club H, to the Respondent on 30 August 2010. The Claimant further sustained that for said services, and as per the financial agreement, he was entitled inter alia to EUR 40,000 for the season 2011-2012 due by 1 September 2011 and to EUR 40,000 for the season 2012-2013 due by 1 September 2012.

5. In this regard, the Claimant referred to the financial agreement and submitted a free translation into English of the document, mainly stating that:

“2- [the Respondent] for [the transfer of the player to the Respondent] shall pay [the company] for the first year a commission of Euro 40,000 (forty thousand euro) plus reimbursement of expenses incurred during the negotiations determined as Euro 8,685.00. The said amount will be paid by 5 September 2010 in a single payment to the Bank Account provided by [the Claimant] on receipt of his invoice.

3- [the Respondent], in relation to the aforementioned work done for subsequent years, shall pay [the company], the following fees schedule in which the registration rights of the Player E has not been released to another Football Club:

- For the season 2011-2012 Euro 40,000.00 (Forty Thousand Euros);

- For the season 2012-2013 Euro 40,000.00 (Forty Thousand Euros).

4- The fees referred to in paragraph 3 shall be due: for the season 2011/2012 on 1 September 2011 if [the player] registration has not been transferred by 31 August 2011; and for the season 2012/2013 on 1 September 2012 if [the player] registration has not been transferred by 31 August 2012. Payment shall be made to the Bank Account provided by [the Claimant] on receipt of his invoice for each relevant season”.

6. In this context, and after having allegedly sent an invoice on 8 March 2012, the Claimant sent it once more to the Respondent by e-mail on 27 July 2012 – after the Respondent alleged not having received it prior thereto – and requested the total amount of EUR 40,250 – excluding VAT – corresponding to EUR 40,000 as lump-sum payment for the season 2011-2012 and EUR 250 as “payment card charges and bank remission fees”, payable within five days of receipt of the relevant invoice.

7. Moreover, the Claimant asserted that, on 30 August 2012, the Respondent apparently invited him to the Transfer Market in country D in the event of any transfer transaction for the player and allegedly assured him that his expenses as to transportation (i.e. taxi and flight tickets) and “full board” (i.e. hotel and food) would be covered. In order to corroborate his allegations, the Claimant provided text messages exchanged with a representative of the Respondent as well as an invoice under his name of a hotel in country D amounting to EUR 159 and the boarding pass for his flight back to country B.

8. In this regard, the Claimant provided an invoice dated 7 September 2012 and sent by e-mail to the Respondent on 19 September 2012, requesting the total amount of EUR 41,014 – in addition to the previous amount of EUR 40,250 as per the invoice dated 8 March 2012 – corresponding to EUR 40,000 as lump-sum payment for the season 2011-2012, plus EUR 500 as “payment card charges and bank remission fees”, plus EUR 736 for his air ticket country B- country D, plus EUR 40 as his “ticket exchange charges”, plus EUR 188 as taxi fares to go to the airport in country B and in country D and EUR 50 as “Board country D”.

9. The Claimant also held that, between 21 and 24 September 2012, subsequent to the Respondent’s decision that the player would no longer play official matches, a mutual agreement was apparently reached so that the player would be allowed to leave the Respondent as a “free transfer”, staying one of its unofficial players with entitlements to physical and medical facilities until 30 June 2013. For this service, the Respondent allegedly agreed to cover the purchase of the aforementioned laptop with accessories for the Claimant, subject to a “retailer’s quotation”. In this regard, the Claimant provided the relevant “retailer’s quotation” sent by e-mail to the Respondent on 25 September 2012 and text messages exchanged with a representative of the Respondent in this respect.

10. Finally, the Claimant insisted on the fact that he worked as a “consultant” in the transaction which took place between 21 and 24 September 2012 between the player and the Respondent, i.e. after the expiration of the representation contract with the player which ended on 5 September 2012.

11. In its statement of defence, the Respondent entirely rejected the Claimant’s claim. First of all, the Respondent deemed that the translation of the financial agreement submitted by the Claimant was inaccurate and shall be disregarded by the Players’ Status Committee (PSC). The Respondent thus submitted the following free translation into English:

“2- [The Respondent], for the [transfer of the player to the Respondent], shall pay [the company], as a commission, the amount of Euro 40.000,00 (forty thousand /00) as well as a compensation of the expenses incurred during the negotiations that shall be determined as a flat rate of Euro 8.685,00. The above amount shall be paid in a single instalment within 20/2/2011, upon the presentation of a regular invoice.

3- [The Respondent], in addition, for the activities performed, shall recognize to [the company], the following rewarding compensation in relation to the period of the effective registration of [the player]:

- For the season 2011/2012 Euro 40.000,00 (forty thousand /00)

- For the season 2012/2013 Euro 40.000,00 (forty thousand /00)

4- The fees referred to in paragraph 3 shall be paid bi-annually in relation to the period of actual registration of the player with [the Respondent], within the following month (January or July) at the end of each period of six months, upon the previous presentation of an invoice”.

12. Moreover, the Respondent argued that, since the Claimant lodged his claim on 6 January 2014, his request as to the payment set forth in art. 2 of the financial agreement, which was due on 20 February 2011, was therefore time-barred. Regarding the amounts payable under art. 3 of the financial agreement due at the end of each bi-annual period of registration of the player with the Respondent, the first bi-annual payment of EUR 20,000 for the season 2011-2012 fell due in January 2012 and thus, the claim related to the said amount was also prescribed.

13. In addition, the Respondent emphasised that the financial agreement was concluded between the Respondent and the company, and the Claimant had solely taken part in the transaction as the legal representative of the company in question, without assuming the rights and the obligations arising from the contract personally. Therefore, and in accordance with art. 6 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the Respondent requested FIFA to terminate the present proceedings with immediate effect.

14. As to the involvement of the Claimant in the transfer of the player to the Respondent, the latter asserted that it actually did not need the assistance of the Claimant in order to negotiate an employment contract with the player and that his sole function consisted of being a “gatekeeper”. The Respondent explained that the Claimant apparently informed the Respondent that the player would sign an employment contract with the Respondent only in the event that the latter agreed to pay a commission to the company.

15. The Respondent further underlined that the Claimant was in fact the agent of the player in the relevant transaction. Therefore, since the player did not give his consent to the Respondent to pay the commission of the Claimant on his behalf, as required by art. 19 of the FIFA Agent Regulations, the Respondent deemed that the Claimant was not entitled to receive a commission from the club.

16. Also, referring to the amounts foreseen in art. 3 of the financial agreement, the Respondent sustained that the payment of such amounts was subject to the company acting on behalf of the Respondent in manner that allowed the latter to keep the player. However, the Respondent alleged that the Claimant instead entered into a representation contract with the player and therefore ceased performing his obligations towards the Respondent, and thus, forfeited his right to claim a commission based on the player remaining registered with the Respondent. As a result, the Respondent held that no further amounts were payable to the Claimant under the financial agreement.

17. In any event, the Respondent contended that, on 24 September 2012, the player and the Respondent mutually agreed to terminate the employment contract in force between them. Since the player was not registered with the Respondent for the season 2012-2013, the latter stated that any amounts that would have become due in accordance with art. 3 and art. 4 of the financial agreement related to the season 2012-2013 never became due and therefore shall be rejected.

18. At last, the Respondent underlined that, despite the Claimant’s allegations, there was no agreement regarding the Respondent taking responsibility of any costs related to the Claimant’s activity or the purchase of a laptop. The Respondent held that it only covered the Claimant’s expenses in the amount of EUR 8,685, as per art. 2 of the financial agreement. In any event, the Respondent emphasised that the Claimant did not support his allegations with written evidence.

19. In his replica, the Claimant rejected the Respondent’s position, in particular its free translation into English of the financial agreement and deemed that, in accordance with FIFA jurisprudence, the meaning of the terms most favourable to him so as to be remunerated should prevail. The Claimant underlined that both lump-sum payments of EUR 40,000 each were not subject to any seasonal pro-rata basis.

20. As to the inadmissibility of his claim since the financial agreement was concluded by the company, the Claimant rejected such argument, emphasising in particular that it is mentioned in said agreement that he was the legal representative of the company and that the services and advice provided to the Respondent were duly done by him as a natural person.

21. With regard to the issue of prescription, the Claimant referred to his invoice dated 8 March 2012 regulating the last date upon which the payment must be made for each respective season. Since the invoice was effectively notified to the club on 27 July 2012, and considering that the relevant invoice set a deadline of five days to proceed to the payment of the relevant amount, the Claimant deemed that 1 August 2012 was the date to take into consideration as well as 24 September 2012 for the invoice dated 7 September 2012 and sent on 19 September 2012 to the Respondent.

22. Moreover, the Claimant underlined that, on 31 August 2012, the player was still part of the Respondent under a “non-economic contract with access to insurance, facilities and other players’ benefits” valid until 30 June 2013 and thus, on 1 September 2012, the lump-sum payment for the season 2012-2013 fell due. In this regard, the Claimant alleged that he requested the Respondent to be provided with said “non-economic contract”, in vain.

23. As to the approved expenses to be refunded by the Respondent, the Claimant held that it was an oral agreement between the parties and that such agreement was valid in country B or in country D. In any case, the Claimant referred to the invoice dated 7 September 2012, which included the said expenses. The Claimant also provided in this regard an e-mail dated 24 November 2014 from the relevant hotel in country D, which stated that the Respondent paid for the Claimant’s room in said hotel.

24. In view of the aforementioned, the Claimant reiterated his initial claim in full, adding a request for interest at a rate of 5% p.a. as of the due date of each payment.

25. In its final comments, the Respondent purely upheld its position.

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 2012, 2014 and 2015). Consequently and since the present matter was submitted to FIFA on 6 January 2014, 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 2012 edition of the Players’ Agents Regulations, considering that the present claim was lodged on 6 January 2014, the 2012 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 from country D, regarding an allegedly outstanding commission.

5. As a consequence, the Single Judge is the competent body 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, 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, the Single Judge noted that the parties had divergent positions as to whom should be considered a party to the financial agreement. Indeed, while the Claimant argued that he should be considered a party to the agreement, the Respondent, for its part, deemed that it was in fact the company.

8. In view of the aforementioned, the Single Judge deemed that, as a preliminary issue in the present matter, it has to be determined whether a representation/financial agreement had validly been concluded between the Claimant and the Respondent.

9. In this respect, the Single Judge pointed out that only the company and the Respondent were mentioned as parties in the financial agreement, whereas the Claimant was only representing the company. The Single Judge further emphasised that, according to the financial agreement, the parties as signatories of the relevant document were the Respondent and the company.

10. As a result, the Single Judge came to the conclusion that it had to be assumed that the agreement had been concluded between the company and the Respondent, and not between the Claimant and the Respondent.

11. Having established the aforementioned, the Single Judge turned his attention to art. 3 par. 2 of the Regulations and stressed that it provided that only the players’ agent himself was entitled to represent and promote the interests of players and / or clubs in connection with other players and / or clubs. In addition, the Single Judge recalled that a players’ agent licence was issued to natural persons only and emphasized that applications from companies were not permitted (cf. art. 3 par. 1 and art. 6 par. 1 of the Regulations). This fact constituted one of the crucial principles of the Regulations and was based on the general approach that in the relationship between an agent and his client, the personal element was of outstanding importance.

12. Furthermore and for the sake of good order, the Single Judge was keen on emphasising that, as a legal entity, a company was usually an independent legal subject.

13. In addition, the Single Judge recalled that, as a general rule, in a contractual dispute based on civil law, only a party to a contract had the right of action.

14. In view of all the aforementioned and taking into account in particular that the company and not the Claimant was a party to the contract at the basis of the present dispute, i.e. to the financial agreement, as well as bearing in mind that the Claimant was only representing the company, the Single Judge resolved that the Claimant could not be considered as one of the legitimate parties entitled to lodge a complaint against the Respondent in the present matter.

15. Equally, the Single Judge reiterated that parties to the financial agreement were solely the Respondent and the company. Hence, only the Respondent and the company were entitled and had a legitimate interest to lodge a complaint based on the financial agreement. Yet, according to the Regulations, companies of or employing players’ agents do not fall under the auspices of FIFA (cf. art. 1 of the Definitions of the Regulations as well as art 1 par. 1 and of the Regulations). Besides, only members of FIFA, clubs, players, coaches or licensed match are admitted as parties in front of the relevant decision-making bodies of FIFA (cf. art. 6 par. 1 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber – edition 2015). As a result, a company could not be a party in front of FIFA.

16. As a consequence of all the above, and considering that the Claimant had no legitimacy to request amounts deriving from the financial agreement from the Respondent, and that the Claimant did not seem to have concluded any other agreement with the Respondent on which his claim could be based, the Single Judge determined that the claim of the Claimant must be rejected.

17. Subsequently, the Single Judge turned his attention to the Claimant’s request regarding alleged approved expenses. In this regard, the Single Judge referred to art. 12 par. 3 of the Procedural Rules – according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof – and concluded that, considering the absence of conclusive evidence submitted by the Claimant to proove that the Respondent agreed to reimburse the relevant expenses allegedly incurred by the Claimant, the Single Judge must reject this part of the claim.

18. 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.

19. 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.

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 the total amount at dispute in the present matter is less that CHF 100,000, the Single Judge concluded that the maximum amount of costs of the proceedings corresponded to CHF 10,000.

21. 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 10,000.

22. Consequently, the amount of CHF 10,000 has to be paid by the Claimant 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, Agent A, is admissible.

2. The claim of the Claimant, Agent A, is rejected.

3. The final costs of the proceedings in the amount of CHF 10,000 are to be paid by the Claimant, Agent A, to FIFA. Considering that the Claimant, Agent A, already paid the amount of CHF 3,000 as advance of costs at the start of the present proceedings, the latter has to pay the remaining amount of CHF 7,000 within 30 days as from the date of notification of the present decision to the following bank account with reference to case nr. xxxxxxxxx:

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