F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – players’ and match agents disputes / controversie agenti di calciatori – (2016-2017) – 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

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.

Players’ Agent A, Country B / Club C, Country D 2

I. Facts of the case

1. On 1 October 2011, the Players’ Agent A, licensed by the Football Federation of Country B (hereinafter: “the Claimant”) and the player Player E (hereinafter: “the player”) concluded a representation contract (hereinafter: “the contract”) valid for two years.

2. Clause four of the contract established that the Claimant is entitled to receive a commission amounting to 10% of the total player´s remuneration except bonuses. The payment of the said commission can be done by the player’s club directly to the Claimant and in case such club would not pay the total amount equivalent to the 10% of the player´s remuneration, the player would pay in subsidiarity. The calculation and payment of the commission to the Claimant will be done at the end of each season once the relevant would have performed the relevant payments to the player.

3. On 6 June 2013, the player and the Claimant concluded an additional agreement (hereinafter: “the agreement”) which stated that the player was transferred to the Club of Country D, Club C (hereinafter: “the Respondent”) with which he concluded an employment contract for the next four seasons.

4. Point 3 of the agreement stated that, pursuant to the provisions of clause four of the contract, the player should pay to the Claimant a commission amounting to EUR 1,100,000, equivalent to 10% of his annual remuneration.

5. Furthermore, point 4 of the agreement stipulated that the player agreed that the relevant commission would be paid directly by the Respondent to the Claimant.

6. Point 1 of the stipulations of the agreement established that the player consented that the Respondent would pay directly to the Claimant the commission indicated in point 3 of the agreement.

7. On 7 June 2013, the Respondent issued a document entitled “Commission” (hereinafter: “the document”) by means of which the Respondent certified that it will pay to the Claimant a 10% commission amounting to EUR 1,100,000 related to the player´s contract.

8. On 20 March 2014, the Claimant lodged a claim with FIFA against the Respondent and requested the payment of the outstanding commission amounting to EUR 1,100,000. Furthermore on 16 February 2016, the Claimant amended his claim requesting 5% interest p.a. on the said amount as from 7 June 2013 (i.e. date of acceptance by the club the obligation to pay the agent´s commission) until the date of effective payment plus an amount of EUR 10,000 to cover legal fees and procedural costs.

Players’ Agent A, Country B / Club C, Country D 3

9. In this respect, the Claimant alleged that the Respondent agreed by means of the document to pay the relevant commission directly to him and that, despite several attempts, it was not possible to reach an amicable settlement with the Respondent.

10. In its reply to the ´s claim, the Respondent alleged that the Claimant had no legal grounds to file a claim against the Respondent in front of FIFA Players´ Status Committee (PSC), “i.e. legitimation ad causam”, since the Claimant did not provide any service to the Respondent and they did not sign a representation contract in accordance with art. 19 par. 5 of the Players´ Agents Regulations.

11. Moreover, the Respondent deemed that the PSC did not have jurisdiction to enter into this matter since the Respondent was never a party to any of the contracts entered between the player and the Claimant and as a consequence the Respondent was not liable to assume any obligation on behalf of the player.

12. Furthermore, the Respondent acknowledged having concluded an employment contract with the player on 30 June 2013 valid until 30 May 2017.

13. In spite of the aforementioned, the Respondent argued that the agreement concluded between the Claimant and the player failed to clarify if the Respondent was authorised to deduct the commission from the player´s remuneration in one lump sum. The Respondent allegedly tried on several occasions to get a clarification from the player without success and hence the Respondent decided not to pay an amount to the Claimant on behalf of the player until his confirmation.

14. Moreover, the Respondent pointed out that the Claimant requested the commission (i.e. EUR 1,100,000) in one sole payment and that this request violated the provisions set out in clause four of the contract, since it established that the Claimant´s commission would be paid at the end of each season.

15. Furthermore, the Respondent argued that the payment of the Claimant´s commission in one lump sum at the beginning of the employment contract violated also the provision set out in the art. 19 par. 4 in fine of the Players´ Agents Regulations, which stipulates that “The payment made on behalf of the player must reflect the general terms of payment agreed between the player and the players´ agent”.

16. In his replica, the Claimant rejected the Respondent´s position in its entirety and argued that it is undisputable that he acted as the agent of the player and that the latter gave his consent (cf. art. 19 par. 4 of the Players´ Agents Regulations) to the Respondent to pay directly the relevant commission to him. This fact was expressly confirmed not only in the agreement concluded between the player and the Claimant but also (one day later) in the document issued by the Respondent.

Players’ Agent A, Country B / Club C, Country D 4

17. Moreover, the Claimant rejected the Respondent´s allegation that the commission amounting to EUR 1,100,000 was not due. In this regard, the Claimant argued that, even though the contract established that the player would pay the commission to the Claimant at the end of each season, the parties changed this provision in the agreement by stipulating one lump sum commission payment. On account of the above, the Claimant claimed that general rules can have exceptions and those exceptions supersede the general regulations, i.e. “Lex specialis derogate legit generali”.

18. Furthermore, the Claimant stated that in the document the Respondent expressly compromised to pay to the Claimant the commission in one single payment showing its free will. The Claimant deemed that the Respondent agreed to modify the payment conditions by issuing the document and, thus, the commission was due to the Claimant.

19. In its duplica, the Respondent reiterated its previous arguments and added that the player never provided any authorisation requesting the Respondent to make deductions from his remuneration for an amount of EUR 1,100,000 with the purpose of paying the commission to the Claimant.

20. Furthermore, the Respondent alleged not being aware about the existence of the agreement concluded between the player and the Claimant.

21. Consequently, the Respondent requested the following:

 to the PSC to declare itself not competent to deal with the present matter,

 to fully dismiss the Claimant´s requests;

Alternatively:

(1) to confirm that the player in lieu of the Respondent shall (if so due) exclusively pay any commission to the Claimant;

(2) to condemn the Claimant to assume the procedural costs of the proceedings.

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 20 March 2014, 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 20 March 2014,

Players’ Agent A, Country B / Club C, Country D 5

the edition 2008 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 Federation of Country B and a Club of 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 1 October 2011 the player and the Claimant concluded the contract valid for two years entitling the latter to receive a commission amounting to 10% of the total player´s remuneration except bonuses. Moreover, the Single Judge noted that clause four of the contract provided the possibility that the commission would be paid directly by the Respondent to the Claimant.

8. Equally, the Single Judge acknowledged that on 6 June 2013, the player and the Claimant concluded the agreement by means of which the latter was entitled to receive from the player a commission amounting to EUR 1,100,000 (cf. clause four of the contract) in connection to the transfer of the player to the Respondent. Moreover, point 1 in combination with point 4 of the agreement established expressly the player’s consent that the relevant commission shall be paid by the club on behalf of the player.

9. In addition, the Single Judge acknowledged that it remained uncontested that, on 7 June 2013, the Respondent issued the document, in accordance with which it agreed to pay the amount of EUR 1,100,000 on behalf of the player, corresponding to the commission due for conclusion of the employment contract between the player and the Respondent.

Players’ Agent A, Country B / Club C, Country D 6

10. At this stage, the Single Judge took note that the Claimant had requested the amount of EUR 1,100,000 from the Respondent on the basis of the document, whereas, the Respondent had alleged that the Claimant was not entitled to receive a commission from them since it did not conclude a representation contract with the Claimant and since it was not a party in the legal instruments concluded between the player and the Claimant.

11. Having duly examined the argumentation and documentation put forward by both parties, the Single Judge referred to art. 19 par. 4 of the Regulations which provides, inter alia, that “the player may give his written consent for the club to pay the player’s agent on his behalf” and, on this account, recalled that, by means of the contract as well as the agreement, the player expressed such required content in writing.

12. In continuation, the Single Judge turned his attention to the Respondent’s argument regarding the due date of the commission payments and pointed out that, although the contract stipulated that the commission payments shall be done in accordance with the player’s annual salary, the more recent agreement as well as, in particular, the document established the Claimant’s entitlement to a lump sum payment amounting to EUR 1,100,000, which was due at the date of the issuance of the document.

13. 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 1,100,000.

14. Furthermore and with regard to the Claimant’s request for legal costs, the Single Judge decided to reject such requesting accordance with article 18 par. 4 of the Procedural Rules and the Player’s Status longstanding jurisprudence in this regard.

15. In view of all the above-mentioned considerations, the Single Judge decided that the claim of the Claimant is partially accepted and that the Respondent has to pay to the Claimant the amount of EUR 1,100,000 as commission.

16. In addition, considering the Claimant’s request, the Single Judge decided that the Respondent has to pay an annual interest at a rate of 5% over the amount of EUR 1,100,000 from the date of lodging the present claim, i.e. on 20 March 2014 until the date of effective payment.

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.

Players’ Agent A, Country B / Club C, Country D 7

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 1,100,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

19. Considering that, in the case in hand, the responsibility of the failure to comply with the agreement 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 18,000 and held that such costs have to be borne by the Respondent.

20. In conclusion, the amount of CHF 18,000 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 1,100,000, plus interest at a rate of 5% per year from 20 March 2014 until the date of effective payment.

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

5. If the aforementioned sum, plus interest as provided above, is 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 18,000 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 5,000 has to be paid directly to the Claimant, Players’ Agent A;

6.2 The amount of CHF 13,000 has to be paid directly to FIFA to the following bank account:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Players’ Agent A, Country B / Club C, Country D 8

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 2. 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 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