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 26 March 2015

Decision of the Single of the Players’ Status Committee

passed in Zurich, Switzerland, on 26 March 2015,

by

Geoff Thompson (England)

Single Judge of the Players’ Status Committee,

on the claim presented by the Players’ Agent

P, country F

represented by Mr xxxxxxx

as “Claimant”

against the club

B, country R

as “Respondent”

regarding a contractual dispute between the parties.

I. Facts of the case

1. On 18 June 2012, the club from R , B (hereinafter: the Respondent) and the company “YXC” (hereinafter: the company) concluded a “Representation agreement” (hereinafter: the agreement) in relation to the transfer of the player S (hereinafter: the player), under the terms of which the Respondent undertook to pay a commission amounting to EUR 60,000 “when received the International Transfer Certificate or until 15.07.2012”. In the original agreement in R language, it is understood that the contractual parties are: the Respondent, the company represented by Mr P, players’ agent licensed by the Football Federation of F (hereinafter: the Claimant) and by his collaborator, Mr J (hereinafter: the collaborator). Whereas the translation into English of the agreement provided by the Claimant stipulates the contractual parties as follows: “YXC […], Mr. P [i.e. the Claimant], […] and by his collaborator, Mr J, as provider”.

2. On 25 April 2013, the Claimant lodged a claim with FIFA against the Respondent arguing that the latter had failed to pay the agreed commission for the transfer of the player.

3. Consequently, the Claimant requested FIFA to condemn the Respondent to pay him the sum of EUR 60,000 together with 5% interest “per annum from the date on which that payment was due until the date of the effective payment”.

4. On 21 May 2013, FIFA informed the Claimant that it was not in a position to further proceed with the investigation in the present dispute since the agreement at the basis of his claim had apparently been concluded between the Respondent and the company “YXC”.

5. On 12 February 2014, the Claimant contested FIFA’s letter dated 21 May 2013 and explained that the agreement had been concluded between “the Club [i.e. the Respondent], the Agent [i.e. the Claimant] and his company YXC [i.e. the company]” and that the wording of the original agreement in R “put the Agent [i.e. the Claimant] as the representative of the company, where the word ‘represented’ should actually be ‘and’ […]”.

6. The Claimant further argued that he had acted as “an independent part” in the agreement and this was confirmed by the fact that both parties, i.e. the Claimant and the company “YXC”, had signed the agreement. Therefore, the Claimant reiterated his previous complaint and requested the commission stipulated in the agreement.

7. In its reply to the claim lodged against it, the Respondent rejected it in its entirety. First and foremost, the Respondent argued that FIFA lacked jurisdiction to decide the matter since the agreement under dispute was signed between the Claimant’s company “YXC” and the Respondent.

8. Moreover, the Respondent stressed that the Claimant “was still agent of the player” at the time he negotiated the player’s employment contract with the Respondent. Indeed, according to the player’s employment contract, it was stipulated as follows: “The Club B [i.e. the Respondent] and the player confirm that they use the services of the player’s agent, P, licensed by FFF and FIFA [i.e. Claimant]”). For this reason, the Respondent deemed that the agreement must be “null and void” and that the Claimant should, consequently, not be entitled to receive any commission whatsoever.

9. Alternatively, the Respondent was of the opinion that the amount claimed as commission should be considered excessive as such commission exceeded 10% of the value of the employment contract signed by the player and the Respondent, i.e. EUR 192,000. Consequently, the Respondent deemed that the commission of the Claimant should not be “higher than EUR 19,200”.

10. On 22 September 2014, the Claimant reiterated his claim and specified that the agreement was “intended to be between the Respondent, the Claimant and the Company” and that the wording in the original agreement “represented by” was an “error”. In this respect, the Claimant alleged that the Respondent had invoked “this error in a manner contrary to good faith in order to avoid its continuing obligations under the Agreement”. The Claimant further stated that his name and his signature appeared in the agreement which proved that he was acting in the transfer of the player to the Respondent “in his capacity as Players’ Agent of the Respondent”.

11. Therefore, the Claimant reiterated his claim and requested the payment of the commission allegedly due to him amounting to EUR 60,000 based on the agreement as well as an interest at a rate of “5% per annum from the date on which the payment was due until the date of the Decision”.

12. On 23 October 2014, the Respondent reiterated its previous statements of defense and added that the Claimant acted in bad faith by submitting a “false translation” in English of the agreement.

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 and 2014). Consequently and since the present matter was submitted to FIFA on 25 April 2013, the Single Judge concluded that the 2008 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 25 April 2013, 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 Federation of F and a club from R, 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, 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.

7. In this regard, the Single Judge first of all duly noted that the parties had divergent positions as to whom should be considered a party to the representation agreement (hereinafter: the agreement), under the terms of which the Respondent undertook to pay EUR 60,000 “when received the International Transfer Certificate or until 15.07.2012”. Indeed, while the Claimant argues that he should be considered a party to the agreement, the Respondent, for its part, deems that it is in fact the company “YXC” (hereinafter: the company).

8. Indeed, the Single Judge recalled that, according to the original test of the agreement in the R language, the Respondent and the company had concluded an agreement in which the Claimant was only representing the company together with his collaborator, J. The Single Judge further recalled that the Claimant provided a contested translation of the agreement into English language, in which it has to be understood that the Claimant, the Respondent as well as the company were the contractual parties.

9. In continuation, the Single Judge acknowledged that, in his claim to FIFA, the Claimant had requested to be remunerated by the Respondent on the basis of the agreement and had also specified that the wording of the original version of such agreement in R language was wrong as the Claimant was not representing the company but was an integral part of such agreement. In addition, the Single Judge took note of the Claimant’s allegation that he had personally concluded the agreement with the Respondent. Besides, the Single Judge noted that, for its part, the Respondent had rejected the Claimant’s claim and had, inter alia, contested the translation into English of the agreement mentioning that such translation provided by the Claimant was wrongly translated from R. The Single Judge also observed that the Respondent deemed that the Claimant was representing the player himself at the same time during the negotiations.

10. In view of the aforementioned, the Single Judge deemed that the first question to be addressed in the present matter was whether a representation agreement had validly been concluded between the Claimant and the Respondent or not.

11. Bearing in mind the abovementioned considerations, the Single Judge was eager to emphasise that there was a clear discrepancy between the original agreement and its translation into English as provided by the Claimant. However, as the translated version provided by the Claimant was strongly contested by the Respondent, which provided another translation, the Single Judge underlined hat he had to analyse the original agreement.

12. In doing so, the Single Judge pointed out that only the company and the Respondent were mentioned as parties in the document in question, whereas the Claimant was only representing the company together with his collaborator, J. This is also corroborated by the translation provided by the Respondent. Furthermore, the Claimant alleged that the original version in R of the agreement contained an “error”, thus acknowledging that the agreement did not mention him as a party. In this regard, the Single Judge was of the firm opinion that it fell upon the Claimant to provide evidence that an “error“ occurred in the drafting of the agreement, which the Claimant had failed to do.

13. 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.

14. 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 is 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 is issued to natural persons only and emphasized that applications from companies are not permitted (cf. art. 3 par. 1 and art. 6 par. 1 of the Regulations). This fact constitutes one of the crucial principles of the Regulations and is based on the general approach that in the relationship between an agent and his client the personal element is of outstanding importance.

15. Furthermore and for the sake of good order, the Single Judge was keen to emphasise that, as a legal entity, a company is usually an independent legal subject.

16. 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 has the right of action.

17. 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 agreement, as well as bearing in mind that the Claimant was not only representing the company together with his collaborator, i.e. J, 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.

18. Equally, the Single Judge reiterated that parties to the 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 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.

19. As a consequence of all the above and considering that the Claimant had no legitimation to claim any amounts deriving from the 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.

20. 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.

21. 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.

22. 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 corresponds to CHF 10,000.

23. In conclusion, considering that the case at hand was adjudicated by the Single Judge and not by the Players’ Status Committee in corpore, and that the present case did show some particular factual difficulties, the Single Judge determined the costs of the current proceedings to the amount of CHF 8,000.

24. Consequently, the amount of CHF 8,000 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, P, is rejected.

2. The final costs of the proceedings in the amount of CHF 8,000 are to be paid by the Claimant 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, Yvan Peron, has to pay the amount of CHF 6,000 within 30 days as from the date of notification of the present decision to the following bank account with reference to case no:

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. 67 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

Markus Kattner

Acting Secretary General

Encl. CAS directives