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 28 September 2016

Decision of the Single of the Players’ Status Committee

passed in Zurich, Switzerland, on 28 September 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 A

as “Claimant”

against the player

Player X, from country X

as “Respondent”

regarding a contractual dispute between the parties

I. Facts of the case

1. On 1 April 2013, the Players’ Agent A, licensed by the Football Federation of country A (hereinafter: the Claimant), and the Player X, from country X (hereinafter: the Respondent), entered into an agreement (hereinafter: the agreement), valid until 1 April 2015 and which provided for the Claimant to receive from the Respondent, as commission, “10% of minimum amount negotiated on bilateral basis for the provided services”.

2. Pursuant to clause 3 B) of the agreement, the Respondent undertakes inter alia to exclusively “use […] the services provided by the Agent [i.e. the Claimant] in the event of making decision of signing of the new contract for sports job, training or renewal of the contract as well as to notify the other club or Sports Company in country X or abroad of the agent’s services”.

3. Clause 3 E) of the agreement stipulated that the Respondent had the contractual obligation to “[E]nter into no other agreement and/nor similar obligations without the relevant consent of the Agent [i.e. the Claimant], by notifying him [i.e. the Claimant] about such fact in writing […]”, whereas its clause 3 I) provided that the Respondent had to “[P]revent from using the services of any other person or FIFA AGENT for the purposes of representing the player’s interests”.

4. According to clause 6 of the agreement “[F]ailure to perform any of the clauses thereto shall imply the obligation of payment of the contractual penalty in the amount of EUR 1 000 000 (one million euro). The parties approve and consider this amount reasonable and acceptable”.

5. On 16 June 2014, the Claimant lodged a claim with FIFA against the Respondent for breach of the agreement. In this respect, the Claimant explained that the Respondent negotiated his employment contract with the, Club B, from country B without his intervention. Furthermore, the Claimant argued that he had suffered “direct damage” and, therefore, requested “10% of the value of his [i.e. the Respondent] contract with Club B” which, according to the Claimant, amounted to EUR 220,000.

6. Consequently, the Claimant requested from the Respondent the amount of EUR 220,000, allegedly corresponding to 10% of the employment contract the Respondent signed with Club B, plus 5% interest p.a. “counted from the 1st of July 2013 until the day of payment”. Alternatively and “in the case of not accepting by the Honourable Committee the claim presented herein”, the Claimant requested from the Respondent the amount of EUR 1,000,000 for breach of contract in accordance with clause 6 of the agreement.

7. In its response on 18 December 2015, the Respondent rejected the Claimant’s claim in its entirety.

8. The Respondent first contested FIFA’s competence to decide on the dispute arguing that “both parties have country X nationality” and that the advance of costs were paid more than two years since the event giving rise to the dispute.

9. Furthermore and as to the substance, the Respondent deemed to have complied with all the clauses of the agreement. In particular, the Respondent confirmed to have negotiated himself his employment contract with Club B without the intervention of the Claimant.

10. On 21 April 2016, the Claimant reiterated in full his initial complaint and stressed out that FIFA was competent to deal with the present matter. In this respect, the Claimant was of the opinion that the dispute had an international dimension since “the transfer was indeed international, between the clubs belonging to different associations – Club Z, from country X and Club B, from country B”.

11. Moreover, the Claimant deemed to have filed the claim against the Respondent within two years.

12. On 14 July 2016, the Respondent reiterated his previous allegations and contested once again FIFA’s competence to decide on the dispute arguing that the “both parties are from country X”. Finally, the Respondent deemed that the “exclusivity clause is not sufficient to establish an obligation for the player [i.e. the Respondent] to pay the agent [i.e. the Claimant] in case the latter was not involved in the conclusion of the agreement”.

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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, considering that the present matter was submitted to FIFA on 16 June 2014, the Single Judge concluded that the 2012 edition of the Procedural Rules (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’ 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 16 June 2014, the 2008 edition of the Players’ Agents Regulations (hereinafter: the Regulations) is applicable to the matter at hand.

3. Moreover and with regard to his competence, the Single Judge pointed out that, according to art. 30 par. 2 of the Regulations, FIFA would, in principle, be competent to deal with international disputes in connection with the activities of players’ agents.

4. However, the Single Judge remarked that the Respondent had contested the competence of FIFA’s deciding bodies, arguing that both the Claimant and the Respondent were registered within the same association. In this regard, the Single Judge expressly referred to the content of art. 30 of the Regulations and the well-established jurisprudence of the Players’ Status Committee, which provide that the latter does not have jurisdiction in disputes between a players’ agent licensed by the association of the country of which the player is a national.

5. At this stage, the Single Judge deemed appropriate to clarify that, although art. 30 of the Regulations does not define specifically what constitutes a domestic or an international dispute, those concepts are defined by the well-established jurisprudence of the Players´ Status Committee. The Single Judge reiterated that the cited jurisprudence is clear and categorical and establishes that the crucial elements to take into account in order to decide if a dispute between a players´ agent and a player is international or not are, on the one hand, the country of the association which granted the relevant license to the players´ agent and, on the other hand, the nationality of the player.

6. The Single Judge observed that, based on the information and documents at disposal, the Claimant is licensed by the Football Federation of country A and the Respondent is a country X national. In this regard, the Single Judge wished to underline that the Respondent had concluded the relevant contract at the dispute, i.e. the agreement, as a country X citizen.

7. Having said this, the Singe Judge of the Players’ Status Committee acknowledged that the Respondent had also contested the admissibility of the complaint of the Claimant alleging that the advance of costs were paid more than two years since the event giving rise to the dispute.

8. In this respect, the Single Judge recalled that the claim of the Claimant was lodged on 16 June 2014 and therefore that such claim was lodged within two years as from the event giving rise to dispute as stipulated in art. 30 par. 4 of the Regulations.

9. In view of all the above, the Single Judge decided that the present dispute is admissible and that 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).

10. 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 he considered pertinent for the assessment of the matter at hand.

11. In doing so and to begin with, the Single Judge noted that the parties had concluded an agreement with the Respondent on 1 April 2013. In this respect, the Single Judge acknowledged that the Claimant was entitled to receive from the Respondent a commission amounting to 10% of “minimum amount negotiated on bilateral basis for the provided services”.

12. Moreover, the Single Judge observed that the Claimant had requested from the Respondent the payment of the total amount of EUR 220,000, allegedly corresponding to 10% of the employment contract the Respondent had signed with the Club B as well as 5% interest per year as from 1 July 2013 until the date of effective payment. Alternatively, the Single Judge noted that the Claimant had requested the sum of EUR 1,000,000 for breach of contract in accordance with art. 6 of the agreement.

13. Likewise, the Single Judge observed that, for his part, the Respondent had confirmed having negotiated and concluded an employment contract with Club B without the intervention of the Claimant and maintained to have complied with all the clauses in the agreement.

14. With those considerations in mind and as a preliminary remark the Single Judge was keen to emphasise that the activity of players’ agents is a function intended to bring players and clubs together, so as to establish working relations, i.e. the players’ agents’ negotiations should culminate in the signing of mutually acceptable contracts between players and clubs. In this context, the Single Judge referred to a letter addressed to all licensed players’ agents in June 1999, whereby the Bureau of the Players’ Status Committee informed the players’ agents that it had discussed at its meeting in on 27 August 1998 cases in which players’ agents had requested a fee from players, even though employment contracts had been concluded between the players and the clubs without the agents’ involvements. In this respect, the Bureau held that players’ agents’ activities must be causal to the conclusion of employment contracts and that, as a general rule, if an employment

contract is signed without the involvement of a players’ agent, the player concerned does not owe any commission to the agent.

15. Notwithstanding the above, and referring again to the afore-mentioned letter, the Single Judge went on to observe that the Bureau had also agreed that players’ agents may, nevertheless, claim commission if they have not been actively involved in a transfer, if a clause to this effect is explicitly and unequivocally stipulated in the relevant representation agreement.

16. With the aforementioned considerations in mind, and reverting to art. 6 of the agreement, the Single Judge concluded that the agreement concluded between the parties in dispute contained an explicit and unequivocal clause entitling the Claimant to claim the amount of EUR 1,000,000 as penalty following his exclusion from the negotiations between the Respondent and Club B.

17. In light of the above, considering the basic legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, the Single Judge reached the conclusion that the Claimant should be entitled to receive a remuneration based on the agreement.

18. Having established the above, the Single Judge went on to calculate the exact amount to be paid by the Respondent to the Claimant as remuneration on the basis of the agreement.

19. In this respect, the Single Judge acknowledged the fact that the parties at the dispute had agreed upon a sum of EUR 1,000,000 in the agreement. However, considering that the player had concluded a four-year employment contract with Club B in June 2013 for a total remuneration of 1,663,968, the Single Judge held that such amount is excessive and disproportionate.

20. Having said this, and taking into account that the Claimant had also requested in his claim the commission amounting to EUR 220,000, the Single Judge deemed such amount proportionate and decided that the Respondent has to pay to the latter the sum of EUR 220,000.

21. As a consequence of all of the above, the Single Judge concluded his analysis of the present case by deciding that the Claimant’s claim is admissible and partially accepted, and that therefore the Respondent must pay to the Claimant an amount of EUR 220,000.

22. 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.

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

24. 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 above CHF 200,001, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

25. In conclusion and in view of the specificity of the matter however taking into account that the present decision was taken by the Single Judge and not by the Players’ Status in corpore, the Single Judge determined the costs of the current proceedings to the amount of CHF 20,000.

26. Consequently, the amount of CHF 5,000 has to be paid by the Claimant and the amount of CHF 15,000 has to be paid by Respondent to cover the costs of the present proceedings.

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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, Player X, has to pay to the Claimant, Players’ Agent A, the outstanding amount of EUR 220,000, within 30 days as from the date of notification of the present decision.

4. In the event that the aforementioned amount is not paid within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to the FIFA 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 20,000 are to be paid within 30 days as from the notification of the present decision as follows:

6.1 The amount of CHF 15,000 by the Respondent, Player X, to FIFA to the following bank account with reference to case nr.:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

6.2 The amount of CHF 5,000 by the Claimant, Players’ Agent A, to FIFA. 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 to pay the cited amount.

7. The Claimant, Players’ Agent A, is directed to inform the Respondent, Player X, 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.

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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