F.I.F.A. – Commissione per lo Status dei Calciatori (2011-2012) – controversie agenti di calciatori – ———- F.I.F.A. – Players’ Status Committee (2011-2012) – players’ and match agents disputes – official version by www.fifa.com – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 30 January 2012, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the Players’ Agent K, as “Claimant / Counter-Respondent” against the club O, as “Respondent / Counter-Claimant” regarding a claim for commission.

F.I.F.A. - Commissione per lo Status dei Calciatori (2011-2012) – controversie agenti di calciatori – ---------- F.I.F.A. - Players' Status Committee (2011-2012) – players’ and match agents disputes – official version by www.fifa.com – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 30 January 2012, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the Players’ Agent K, as “Claimant / Counter-Respondent” against the club O, as “Respondent / Counter-Claimant” regarding a claim for commission. I. Facts of the case 1. By means of an agreement dated 16 August 2005 and valid until 31 August 2005 (hereinafter: the scouting agreement), the club O (hereinafter: the Respondent / Counter-Claimant or simply: the Respondent) instructed the players’ agent licensed by the Football Federation K (hereinafter: the Claimant / Counter- respondent or simply: the Claimant) to look for a new football player on its behalf. 2. On 30 August 2005, the Respondent concluded an employment contract (hereinafter: the employment contract) with the player B (hereinafter: the player), valid for four seasons until the end of the season 2008/2009. 3. On the same day, the Claimant and the Respondent concluded another agreement (hereinafter: the agreement), by means of which it was confirmed that the player had been hired by the Respondent as a result of the work accomplished by the Claimant. Furthermore, the agreement provided for the Claimant to receive from the Respondent a commission amounting to a maximum of 10% (excluding taxes) of the player’s salary, i.e. the maximal amount of EUR 306,000, payable pro rata temporis in the seasons 2005/2006, 2006/2007, 2007/2008 and 2008/2009 as follows: - EUR 60,000 for the season 2005/2006 in two instalments of EUR 30,000 each, the first one to be paid on 15 December 2005 and the second one on 15 march 2006; - EUR 78,000 for the season 2006/2007 in two instalments of EUR 39,000 each, the first one to be paid on 10 September 2006 and the second one on 31 January 2007; - EUR 84,000 for the season 2007/2008 in two instalments of EUR 42,000 each, the first one to be paid on 10 September 2007 and the second one on 31 January 2008; - EUR 84,000 for the season 2008/2009 in two instalments of EUR 42,000 each, the first one to be paid on 10 September 2008 and the second one on 31 January 2009. 4. In continuation, the agreement specified that the mentioned instalments were only due in case the player was still part of the Respondent’s squad on the 10th of September of the corresponding season (cf. clause 2 par. 2 of the agreement). 5. Finally, the parties agreed that the Players’ Agent’s Commission of the Football Federation was competent to deal with any dispute that could arise from the agreement (cf. art. 4 of the agreement) and undertook to respect the regulations concerning placement officers as well as all the national mandatory laws of the parties’ countries (cf. art. 3 of the agreement). 6. On 22 April 2009, the Claimant lodged a claim with FIFA against the Respondent, requesting from the latter the payment of EUR 168,000 plus 5% interest as follows: on the amount of EUR 42,000 as from 10 September 2007; on the amount of EUR 42,000 as from 31 January 2008; on the amount of EUR 42,000 as from 10 September 2008 and on the amount of EUR 42,000 as from 31 January 2009. Besides, the Claimant requested the imposition of the costs of the proceedings (including the reimbursement of the advance of costs paid to FIFA) on the Respondent. Finally, the Claimant requested the Respondent to “compensate” the “legal costs” which he had incurred “in connection with these proceedings in an amount to be determined at the discretion of the players’ status committee.” 7. In this respect, the Claimant explained having terminated his contractual relationship with the Respondent on 10 February 2009 because the latter, in breach of the agreement, had failed to pay him part of his commission. 8. In addition, the Claimant mentioned that, in its response to the claim, the Respondent would probably contest owing the instalments due on 10 September 2007 and 31 January 2008 on the basis of clause 2 par. 2 of the agreement arguing that, during the 2007/2008 season, the player had been loaned to the club W. In this connection, the Claimant stressed that a loan did not correspond to a transfer and that, consequently, his commission for the season 2007/2008 was due. 9. Finally and with reference to the arbitration clause included in the agreement (cf. point I.5 above), the Claimant contested the jurisdiction of the Players’ Agents’ Commission of the Football Federation as, in his opinion, it does not constitute an independent arbitrational tribunal. 10. In its response, the Respondent rejected the Claimant’s claim and lodged a counterclaim against the latter. 11. In this respect and first of all, the Respondent, referring to art. 3 and 4 of the agreement, rejected the competence of FIFA to deal with the present matter arguing that the parties had agreed to refer any disputes between them to the Players’ Agent’s Commission of the Football Federation and claimed that the applicable law is x law. Furthermore and in reply to the Claimant’s allegations with regard to the independence of the Players’ Agent’s Commission of the Football Federation, the Respondent stated that the clause in question was freely agreed between the parties. 12. As to the substance of the present matter, the Respondent admitted having concluded the scouting agreement and the agreement with the Claimant and recognised that the latter had negotiated the transfer of the player. Furthermore, the Respondent argued having paid to the latter five instalments in accordance with the agreement, i.e. EUR 30,000 on 15 December 2005, EUR 30,000 on 15 March 2006, EUR 39,000 on 10 September 2006, EUR 39,000 on 31 January 2007 and EUR 42,000 on 10 September 2008. As to that and by means of a subsequent correspondence, the Respondent also provided FIFA with a copy of a remittance order for the payment of EUR 42,000 dated 13 February 2009, allegedly corresponding to the instalment due on 10 September 2008, as well as a letter from the bank, dated 27 July 2010, in which it is confirmed that the amount of EUR 42,000 was paid to the Claimant’s bank account on 17 February 2009. 13. In continuation, the Respondent alleged that the agent never provided it with the invoices for the instalments due on 31 January 2008 and on 31 January 2009. Besides, the Respondent maintained that, between 31 July 2007 and 30 June 2008, the player had been loaned to the Club W and that, on 15 January 2009, the latter had been transferred to the club G. In this context and as proof of its allegations, the Respondent inter alia provided FIFA with a copy of the mentioned transfer agreement concluded with G, valid as of 15 January 2009, as well as with a copy of an agreement that it had apparently concluded with the player on 6 August 2007 and by means of which his employment contract had been suspended between 31 July 2007 and 30 June 2008 as a consequence of the player’s loan to W. The same agreement provides that, during the loan period, the player was not entitled to receive any remuneration from the Respondent. As a consequence, the Respondent was of the opinion that the last three instalments included in the agreement were not due to the Claimant. 14. In addition, the Respondent stressed that, according to the wording of the agreement, the Claimant’s commission could not exceed 10% of the player’s income. Furthermore, the Respondent alleged that the total amount of salary received by the player for 29,5 months of work corresponded to EUR 171,789. Furthermore, the Respondent recalled having paid EUR 180,000 to the Claimant as commission. 15. On account of the above, the Respondent was of the opinion that, in any case, the Claimant should reimburse the difference between the amount received, i.e. EUR 180,000, and 10% of the amount actually paid to the player, i.e. EUR 171,780, i.e. the sum of EUR 8,202. 16. Finally, the Respondent requested FIFA to impose the costs of the proceedings on the Claimant. 17. In his replica, the Claimant reiterated the content of his claim and rejected the Respondent’s counter-claim. In addition, the Claimant denied having received from the Respondent the instalment of EUR 42,000 that was originally due on 10 September 2008. Besides, the Claimant stressed that, according to the agreement, he was explicitly entitled to receive the total amount of EUR 306,000 as commission. 18. In continuation, the Claimant reiterated that the loan of the player to the club W had no influence on his commission. Nevertheless and taking into account the player’s transfer to the club G, the Claimant renounced to claim the last instalment due in accordance with the agreement. Therefore, the Claimant amended his claim by only requesting from the Respondent the payment of EUR 126,000, plus 5% interest on the amount of EUR 42,000 as of 10 September 2007, on the amount of EUR 42,000 as of 31 January 2008 and on the amount of 42,000 as of 10 September 2008. Finally, the claimant rejected the applicability of law. 19. In their final statements, the Respondent and the Claimant reiterated the content of their previous submissions. 20. In accordance with the player passport of the player that was provided to FIFA by the Football Federation, the ITC of the player was sent to the Football Association on 8 August 2008. 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 par. 2 and 3 of the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008). The present matter was submitted to FIFA on 22 April 2009, thus after 1 July 2008. Therefore, the Single Judge concluded that the current edition of the Procedural Rules (edition 2008; 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, and considering that the present claim was lodged on 22 April 2009, the current edition of the Players’ Agents Regulations (edition 2008; hereinafter: the Regulations) is applicable to the matter at hand. 3. Turning his attention to the question of competence, the Single Judge noted that, in the Respondent’s opinion, FIFA should not be competent to hear the present dispute because the agreement concluded between the parties to the dispute on 30 August 2005 included an arbitrational clause which established that any dispute arising from said agreement would be of the competence of Players’ Agent’s Commission of the Football Federation. In this respect and first of all, the Single Judge recalled 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. Furthermore, the Single Judge stressed that, in accordance with art. 30 par. 1 and 2 of the Regulations, only domestic disputes in connection with the players’ agents’ activity fall within the competence of the relevant national associations while, in case of international disputes, the FIFA’s Players’ Status Committee is the competent body to take a decision on the matter. Consequently and considering that the present affair concerns a dispute arisen between a players’ agent licensed by the Football Federation and a club with regard to an alleged outstanding commission, the Single Judge came to the conclusion that he was indeed competent to pass a decision in the case at hand which has an international dimension. 4. His competence and the applicable regulations having been established, and entering into the substance of the present matter, the Single Judge started by acknowledging the established facts of the case and the arguments of the parties as well as the documents contained in the file. In particular, the Single Judge started his analysis of the case by noting that, on 30 August 2005, the Claimant and the Respondent had concluded an agreement (hereinafter: the agreement) by means of which it was confirmed that the player B (hereinafter: the player) had been hired by the Respondent as a result of the work accomplished by the Claimant on its behalf and that, consequently, the latter was entitled to receive a commission amounting to a maximum of 10% (excl. taxes) of the player’s salary, i.e. the maximal amount of EUR 306,000, payable pro rata temporis in the seasons 2005/2006, 2006/2007, 2007/2008 and 2008/2009 as follows: - EUR 60,000 for the season 2005/2006 in two instalments of EUR 30,000 each, the first one to be paid on 15 December 2005 and the second one on 15 march 2006; - EUR 78,000 for the season 2006/2007 in two instalments of EUR 39,000 each, the first one to be paid on 10 September 2006 and the second one on 31 January 2007; - EUR 84,000 for the season 2007/2008 in two instalments of EUR 42,000 each, the first one to be paid on 10 September 2007 and the second one on 31 January 2008 and - EUR 84,000 for the season 2008/2009 in two instalments of EUR 42,000 each, the first one to be paid on 10 September 2008 and the second one on 31 January 2009. 5. Furthermore, the Single Judge took note that, as clearly stipulated in clause 2 par. 2 of the agreement, the mentioned instalments were only due in case the player was still part of the club’s squad on the 10th of September of the corresponding season. As to that, the Single Judge further remarked that during the 2007/2008 season the player had been loaned to the English club W and that his contract with the Respondent had been suspended between 31 July 2007 and 30 June 2008. 6. In continuation, the Single Judge acknowledged that, in his amended claim to FIFA (cf. point I.18), the Claimant had requested the payment of part of his commission, i.e. the total amount of EUR 126,000, arguing that he had not yet received from the Respondent the instalments due on 10 September 2007, on 31 January 2008 and on 10 September 2008 as stipulated in the agreement. Furthermore, the Single Judge noticed that, in the Claimant’s opinion, despite the content of clause 2 par. 2 of the agreement, the player’s loan to the club W had no influence on the payment of his commission for the season 2007/2008. In addition, the Single Judge observed that, for its part, the Respondent had repeatedly contested owing the Claimant’s commission for the season in question precisely on the basis of the player’s loan to W. 7. In view of the above-mentioned allegations, the Single Judge considered that he would first have to address the question of whether the Claimant was at all entitled to receive commission for the season 2007/2008. 8. In this context, the Single Judge observed that both the Claimant and the Respondent had explicitly recognized that clause 2 par. 2 was an integral part of the agreement. Besides, the Single Judge recalled that in accordance with the agreement, the Claimant’s commission was payable in several instalments and that, as per the relevant clause 2 par. 2, the payment of each instalment depended on the player being part of the Respondent’s squad on the 10th of September of the corresponding season. In addition, the Single Judge pointed that it was undisputed that the player had been loaned to the club W during the 2007/2008 season, and thus that he was not part of the Respondent’s squad on the 10th of September 2007, his employment contract having been suspended as of 31 July 2007. 9. On account of the above, bearing in mind the unmistakable wording of art. 2 par. 2 of the agreement that specifies which prerequisites had to be fulfilled in order for the Claimant to receive each single instalment of his commission, the Single Judge established that the condition for the payment of the his commission during the 2007/2008 season had not been met and thus concluded that the Claimant was not entitled to receive the two instalments scheduled on 10 September 2007 and on 31 January 2008. Therefore, the Single Judge decided that the first part of the Claimant’s claim had to be rejected. 10. Having established the above, the Single Judge went on to deal with the second part of the Claimant’s claim, i.e. his request for payment of EUR 42,000, corresponding to the second last instalment due under the terms of the agreement and payable on 10 September 2008. 11. In this respect, the Single Judge took note of the assertion of the Claimant that he had never received the above-mentioned instalment of EUR 42,000 from the Respondent. 12. In continuation, the Single Judge remarked that, for its part, the Respondent had denied not having settled the amount in question and had provided FIFA with a confirmation issued by the bank in which it was stated that EUR 42,000 had been transferred to the Claimant’s bank account on 17 February 2009. 13. In view of the above, considering the content of art. 12 par. 3 of the Procedural Rules which stipulates that the burden of proof has to be carried by the party claiming a right on the basis of an alleged fact as well as bearing in mind the declaration of the Respondent, which had been accompanied by a bank receipt confirming that the amount of EUR 42,000 had been duly paid to the Claimant on 17 February 2009, the Single Judge came to the conclusion that the second part of the Claimant’s claim could not be granted, since it is proven that he has already received the amount in question. 14. In addition and as to the Claimant’s claim for the reimbursement of his legal expenses, the Single Judge recalled the provisions of art. 18 par. 4 of the Procedural Rules, which clearly stipulate that “No procedural compensation is awarded in proceedings of the Players’ Status Committee and the DRC”. 15. In view of the above, the Single Judge decided that the Claimant could not be reimbursed for the legal expenses which he had incurred. Therefore, the Single Judge ruled that also the third and last part of the Claimant’s claim had to be rejected. 16. Finally, the Single Judge turned his attention to the counterclaim of the Respondent, i.e. the latter’s request for the reimbursement of EUR 8,202. 17. In this regard and first of all, the Single Judge remarked that, in the Respondent’s opinion, the commission due to the Claimant in accordance with the agreement could not exceed 10% of the player’s income and that consequently, the latter, having already received the amount of EUR 180,000, had to reimburse the difference, i.e. apparently the amount of EUR 8,202. 18. Bearing in mind the aforementioned, the Single Judge referred to the wording of the agreement and pointed out that it clearly indicated the sum of EUR 306,000 as the maximal amount that the Claimant could receive from the Respondent as commission. Therefore and in view of the fact that the Claimant seemed to have only received from the Respondent the total amount EUR 180,000 as commission, the Single Judge came to the conclusion that no reimbursement whatsoever was due to the latter. Accordingly, the Single Judge decided that the counterclaim of the Respondent had to be rejected. 19. As a consequence of all the above, the Single Judge concluded his deliberations on the present dispute by deciding that the claim of the Claimant is rejected and that the counterclaim of the Respondent is 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 both the claim of the claimant and the counterclaim of the Respondent are rejected. Therefore, the Single Judge concluded that in view of the circumstances of the present case it would be fair and reasonable that the costs of the current proceedings are borne by both parties. 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, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 20,000. 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 not show particular factual difficulties or specific legal complexities but bearing in mind the considerable amount of submissions that had to be analysed, the Single Judge determined the costs of the current proceedings to the amount of CHF 12,000. 24. Consequently, the Single Judge decided that the Claimant has to pay the amount of CHF 7,000 and the Respondent has to pay the amount of CHF 5,000 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 / Counter-Respondent, players’ agent K, is rejected. 2. The counter-claim of the Respondent / Counter-Claimant, club O, is rejected. 3. The total costs of the proceedings in the amount of CHF 12,000 are to be paid by both parties, within 30 days as from the date of notification of the present decision as follows: 3.1. The amount of CHF 7,000 has to be paid by the Claimant / Counter- Respondent, players’ agent K. Considering that the Claimant / CounterRespondent, players’ agent K, already paid the amount of CHF 5,000 as advance of costs, the latter has to pay the remaining amount of CHF 2,000 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: UBSWCHZH80 3.2. The amount of CHF 5,000 has to be paid by the Respondent / Counter- Claimant, club O. Considering that the Respondent / Counter-Claimant, club O, already paid the amount of CHF 5,000 as advance of costs, the latter is exempted from paying the abovementioned costs of the proceedings. Note relating to the motivated decision (legal remedy): According to art. 63 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 www.tas-cas.org For the Single Judge of the Players’ Status Committee Jérôme Valcke Secretary General Encl. CAS directives