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 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 club

Club C, country D

as “Respondent”

regarding a contractual dispute between the parties.

I. Facts of the case

1. On 26 June 2012, the club from country D, Club C (hereinafter: “the Respondent”); the private company “company E” (hereinafter: “the private company”) represented by its director (i.e. Mr Players’ agent A) and the players’ agent licensed by the Football Association of country B, Mr Players’ agent A (hereinafter: “the Claimant”) concluded a representation contract (hereinafter: “the contract”) in connection with the temporary transfer of the Player F (hereinafter: “the player”) from the club from country G, Club H (hereinafter: “Club H”) to the Respondent.

2. Paragraph a. of the contract stated: “Club C [i.e. the Respondent] wishes to transfer on loan the player … by Club H and sign with him a professional football player´s contract, without paying any transfer on loan fee to the abovementioned club”.

3. Paragraph b. of the contract stated: “The agent [i.e. the Claimant] will provide his services regarding the transfer on loan of the Player”.

4. Point 1 of the contract stated: “With this private agreement Club C [i.e. the Respondent] undertakes the obligation to pay the net amount of 95,000 EUR (“agent fee”) to the Agent [i.e. the Claimant] for the services regarding the transfer on loan of the player”. Such amount was payable in two equal instalments of EUR 47,500 on 15 August 2012 and 15 January 2013, respectively.

5. Point 2 of the contract stated: “The above mentioned obligation will be valid only if: a. Club C [i.e. the Respondent] and Club H agree to the above mentioned transfer without Club C [i.e. the Respondent] paying any transfer on loan fee to Club H. b. The player and Club C [i.e. the Respondent] will agree and cooperate, by signing an official and valid professional football player´s contract with each other. c. The player´s ITC will be received from the Football Federation of country D. d. The respective invoice/s will be issued by the company E [i.e. the private company].”

6. On 26 June 2012, the Respondent and Club H signed a loan agreement regarding a temporary transfer of the player (hereinafter: “the loan agreement”) from 1 July 2012 until 30 June 2013.

7. Point 5 of the loan agreement stated: “Parties to this Contract – the football clubs have agreed that no transfer on loan fee will be paid for this temporary transfer of the player”.

8. On 18 December 2013, the Claimant lodged a claim with FIFA against the Respondent requesting the payment of an outstanding commission of EUR 79,260, plus interest at a rate of 5% p.a. from 15 August 2012 (date of the alleged contractual breach by the Respondent) plus procedural and legal costs.

9. Subsequently, FIFA sent a letter to the Claimant informing that it appears that the FIFA deciding bodies were not in principle in a position to intervene in a dispute between an agent and a club if the representation contract at the basis of the relevant dispute was concluded by a company.

10. Nonetheless, the Claimant insisted on his claim against the Respondent. In particular, the Claimant emphasised that he was also a part of the contract as a licensed players´ agent and that he did not intervene only as representative of the private company.

11. Moreover, the Claimant argued that in accordance with the art. 3 par. 2 of the FIFA Players´ Agents Regulations (hereinafter: “the regulations”) he organized his business with the private company and served as its director. The Claimant further argued that for tax purposes the invoices are issued by said company and hence as a common practice he added the company as additional party to any agreement. Lastly, the Claimant alleged that FIFA and CAS jurisprudence is in line with his allegations.

12. In continuation, the Claimant argued that he had fulfilled his obligations assumed in the contract by negotiating the celebration of the loan agreement free of any payment in favour of the Respondent. However, the Respondent breached its obligations based on the contract without just cause and never tried to settle the present matter in an amicable way.

13. The Claimant confirmed that on 18 November 2012, the Respondent made a partial payment to him amounting to EUR 15,740. In this respect, the Claimant enclosed an invoice issued by the private company in favour of the Respondent.

14. In its reply to the Claimant’s claim, the Respondent rejected his requests and alleged that the Claimant and the private company signed the contract jointly as “the agent”. In this respect, the Respondent argued that the claim was submitted to FIFA only by the Claimant and not jointly with the private company. Therefore, the Claimant was not entitled to submit his claim on his own.

15. The Respondent added that even if the Claimant and the private company would have lodged the relevant claim in front of the FIFA´s deciding bodies, those bodies should not hear the case due to the fact that, in accordance with the regulations, companies were not a party in front of FIFA.

16. Alternatively, the Respondent alleged that the commission requested by the Claimant was abusive taking into account that the loan concluded by both clubs was free of charge and the total player´s remuneration was EUR 200,000. Therefore, the Claimant requested that, in case the FIFA´s deciding bodies would accept the Claimant´s claim, his commission should be readjusted to EUR 6,000.

17. Furthermore, the Respondent claimed that the Claimant did not fulfil the condition stipulated in point 2 d. of the contract by not submitting the relevant invoice regarding the 2nd instalment to the Respondent. Therefore, the Respondent deemed that 2nd instalment did not become due.

18. The Claimant presented his reaction and reiterated his previous allegations. In addition, the Claimant stated that FIFA and CAS jurisprudence distinguished situations where agents acted on behalf of a company or as a representative of a company.

19. With regard to the invoice related to the 2nd instalment, the Claimant argued that the Respondent acted in bad faith since it never mentioned or requested the relevant invoice.

20. The Respondent presented its final position and reiterated all its previous allegations.

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 18 December 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 18 December 2013, the 2008 edition 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 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 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 on 18 June 2013, the Claimant; the private company represented by the Claimant and the Respondent concluded the contract by means of which the latter undertook to pay to the Claimant an amount of EUR 95,000 as commission for the services rendered in connection with the loan of the player to the Respondent.

8. In this context, the Single Judge underlined that taking into account that a private company was part of the contract which constituted the legal basis of this dispute, the FIFA administration informed the Claimant that, in principle, FIFA did not appear to be in a position to hear the relevant claim.

9. Notwithstanding the above, the Single Judge pointed to the structure of the contract as well as to the Claimant’s clarification and took note that the latter signed the contract as legal representative of the private company as well as a licensed players´ agent. This, according to the Claimant, for administrative reasons. Equally, the Single Judge emphasised the fact that the agent and not the private company was entitled to receive relevant commission in accordance with the document in question.

10. In view of the foregoing, the Single Judge deemed that the Claimant concluded the contract in his role as a player’s agent as such and that he used the private company only as a way to organise his business and as a consequence he was entitled to lodge the present claim.

11. In continuation, the Single Judge remarked that, on the one hand, the Claimant had acknowledged having received from the Respondent an amount of EUR 15,740, however, requested an amount of EUR 79,260 as outstanding commission in accordance with the contract. On the other hand, the Respondent did not contest not having paid such outstanding amount, nevertheless, it invoked that such amount should be considered as abusive taking into account that the loan concluded by both clubs was “free of charge”.

12. In this respect, the Single Judge recalled the content of the contract and emphasised that the Respondent and the Claimant had contractually agreed that the latter would receive from the Respondent a commission amounting to EUR 95,000 payable in two equal instalments of EUR 47,500 on 15 August 2012 and on 15 January 2013, respectively. The Single Judge further remarked that said payments were established by the parties under the condition that the loan of the player would be without involving the payment of any transfer fee (cf. paragraph a., b. and 1 of the contract).

13. Therefore, considering the legal principle of freedom of contracts and the fact that the Respondent made a partial payment in favour of the Claimant without invoking any concerns regarding the amount of the contractually agreed commission, the Single Judge deemed that such amount cannot be considered disproportional and abusive.

14. In view of all of the above, the Single Judge decided that, in accordance with the general principle of pacta sunt servanda which in essence means that agreements must be respected by the parties in good faith, the Respondent must pay to the Claimant the commission agreed upon in the amount of EUR 79,260.

15. In addition, taking into account the Claimant´s request for interest the Single Judge ruled that the Respondent has to pay to the Claimant an annual interest at a rate of 5% over the said amounts from the relevant due dates.

16. Furthermore and with regard to the Claimant’s request for legal costs, the Single Judge decided to reject such request in accordance with article 18 par. 4 of the Procedural Rules as well as the Players’ Status Committee longstanding jurisprudence.

17. 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.

18. 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 79,260. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 10,000.

19. 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 7,000 and held that such costs have to be borne by the Respondent.

20. In conclusion, the amount of CHF 7,000 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 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 outstanding amount of EUR 79,260, plus interest as follows:

 5% per year over EUR 31,760 from 16 August 2012 until the date of effective payment;

 5% per year over EUR 47,500 from 16 January 2013 until the date of effective payment.

4. Any further claims lodged by the Claimant, Players’ agent A, are rejected.

5. If the aforementioned sums, plus interest as provided above, are 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 amounting to CHF 7,000 are to be paid by the Respondent, Club C, within 30 days as from the date of notification of the present decision, as follows:

6.1 The amount of CHF 2,000 has to be paid directly to the Claimant, Players’ agent A;

6.2 The amount of CHF 5,000 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

7. The Claimant, Players’ agent A, is directed to inform the Respondent, Club C, directly and immediately of the account number to which the remittances under points 3. and 6.1 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