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 19 March 2014

in Zurich, Switzerland, on 19 March 2014

in the following composition:

Sunil Gulati (USA), Deputy Chairman

Geoff Thompson (England), member

Johan van Gaalen (South Africa), member

Luis H. Bedoya (Colombia), member

Pare Salmon (Tahiti), member

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. By means of a document dated 29 January 2010 (hereinafter: the authorization), valid until 2 February 2010, the Club C from country D (hereinafter: the Respondent) authorized the Players’ Agent A licensed by the Football Association of country B (hereinafter: the Claimant) “to negotiate with our player, Player E [hereinafter: the player], his condition for a possible transfer in country F at the Club G [hereinafter: Club G]”. In this respect, the authorisation did not specify any commission payable to the agent.

2. By means of a further document dated 29 January 2010 (hereinafter: the second authorization), the Respondent authorized “the officials of the club (...) Club G to negotiate with our player (...) his condition for a possible transfer in country F at the club (...) Club G”.

3. On 1 February 2010, the Respondent concluded a transfer agreement with Club G (hereinafter: the transfer agreement) concerning the transfer of the player to Club G for the sum of EUR 1,300,000. The Claimant is not mentioned in the agreement.

4. On 14 April 2011, the Claimant lodged a claim with FIFA against the Respondent requesting from the latter the payment of EUR 80,000 as commission, plus interests.

5. In this respect, the Claimant referred to the authorization as well as to the second authorization and argued that because he had successfully negotiated the transfer of the player to Club G in cooperation with the Players’ Agent licensed by the Football Federation of country H, Players’ Agent I (hereinafter: Mr I), who was apparently duly authorized by Club G, the Respondent had to pay him the agreed commission in the amount of EUR 80,000. In this context and as evidence of his involvement in the relevant transfer, the Claimant provided FIFA with several emails allegedly exchanged between him, the club and Mr I at the end of January 2010.

6. In continuation, the Claimant explained that the Respondent had never signed an agreement related to the payment of the sum of EUR 80,000 as commission but had agreed on paying the amount in question. In this respect, the Claimant provided FIFA with an email addressed to the club on 22 February 2010 as well as an unsigned draft of an agreement concerning the payment of EUR 80,000 as commission to him.

7. Finally, the Claimant alleged having also assisted the Respondent and Club G in finalizing the transfer of the player into the Transfer Matching System (TMS) together with Mr I and having transmitted a copy of the payment receipt of the relevant transfer fee to the club. As to that, the Claimant provided FIFA with three emails dated 4 and 5 February 2010 respectively, allegedly received by Mr I, as well as an email dated 5 February 2010, allegedly received by the Respondent.

8. On 16 June as well as on 5 September 2011, FIFA wrote to the Claimant and inter alia informed the latter that, in accordance with art. 20 par. 5 of the Players’ Agents Regulations “A Players’ agent who has been contracted by a club shall be remunerated for his services by payment of a lump sum that has been agreed upon in advance.”

9. Nevertheless, the Claimant insisted on being entitled to receive EUR 80,000 as commission from the Respondent and provided FIFA with the following additional documentary evidence:

 a correspondence dated 31 January 2010 of the Respondent addressed to Mr I which reads: “Dear Sir, regarding the eventual transfer of the Player E, we send you the conditions: if we signed a 1.300.000 Euro, Definitive transfer agreement. We shall pay only to player’s Agent, Mr A the rate of 80.000 Euro”;

 an exchange of correspondence between the Claimant and the Respondent which apparently occurred in March 2010, and where the parties mentioned a meeting “between 8th of April and 15 of April 2010, in city J”. In the relevant emails there is no mention of a commission payable to the agent.

10. In addition, the Claimant pointed out that, in 2007, CAS had recognized a players’ agent’s entitlement to receive his commission from a club although the parties in question had not concluded any written representation agreement.

11. In its response dated 26 March 2013, the Respondent rejected the Claimant’s claim.

12. In this respect, the Respondent acknowledged having exchanged several emails with the Claimant as well as with Mr I in connection with the transfer of the player to Club G and admitted having signed the authorization as well as the second authorization. Nevertheless, the Respondent contested having been represented by the Claimant. According to the latter, it had been unsure as to whether the Claimant and Mr I were representing Club G or the player.

13. In continuation, the Respondent pointed out that, by means of the authorization, it had simply indicated that it “did not object to the Claimant’s intention to negotiate with the Player about the conditions of a potential employment relationship between Club G and the Player.” Furthermore, the Respondent specified that the final version of the transfer agreement was concluded without the involvement of the Claimant, who was not even mentioned in the document in question. In the same context, the Respondent also clarified that the Claimant’s name was not mentioned in the TMS and stressed that “any and all communications related to the payment of the transfer fee equal to EUR 1,300,000.00 / - concerning the Player’s transfer took place directly between Club G and Club C.”

14. Equally, the Respondent specified that it had no information as to “any internal communication between the Claimant, Mr. I and/or Club G as well as the reasons behind them.”

15. Eventually, the Respondent also questioned the authenticity of the letter dated 31 January 2010 provided by the Claimant at a later stage in the proceedings (cf. point I.9 above) and added that, anyway, the document in question could not be “classified as any sort of declaration by means of which Club C intended to express a legally binding will towards the Claimant” nor “as a document by means of which Club C would bind itself (…) to pay him the amount equal to EUR 80,000”. As to that, the Respondent further specified that the relevant correspondence did not even fulfilled “the requirements according to the FIFA Regulations.”

16. Finally, the Respondent provided FIFA with a printout from the TMS related to the transfer of the player to Club G where neither the Claimant nor Mr I were mentioned. According to the same document, the players’ agent licensed by the Football Federation of country F, Players’ Agent K, was mentioned as Club G’s agent.

II. Considerations of the Bureau of the Players’ Status Committee

1. First of all, the Bureau of the Players’ Status Committee (hereinafter also referred to as: the Bureau) 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 (editions 2008 and 2012). Consequently and since the present matter was submitted to FIFA on 14 April 2011, the Bureau concluded that the 2008 edition of the Procedural Rules is applicable to the matter at hand (hereinafter: the Procedural Rules).

2. Subsequently, the Bureau analysed which edition of the FIFA Players’ Agent Regulations should be applicable. In this respect, it 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 14 April 2011, 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 Bureau 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 Bureau continued his deliberations by indicating 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 allegedly outstanding commission.

5. As a consequence, the Bureau is the competent body to decide on the present matter which has an international dimension (cf. art. 30 par. 2 of the Regulations).

6. Its competence and the applicable regulations having been established and entering into the substance of the matter, the Bureau started its analysis by acknowledging the facts of the case and the arguments of the parties as well as the documents contained

in the file. In doing so and first of all, the Bureau acknowledged that the Respondent had signed a document dated 29 January 2010, valid until 2 February 2010, by means of which the Claimant had been authorized to represent it to negotiate with the player “his condition for a possible transfer in country F at the Club G”. Furthermore, the Bureau noted that on 29 January 2010, the Respondent had signed another document by means of which it had authorized “the officials of the club (…) Club G to negotiate with our player (…) his condition for a possible transfer in country F at the club (...) Club G.” In addition, the Bureau took note that, on 1 February 2010, the Respondent concluded a transfer agreement with Club G concerning the transfer of the player in which the Claimant was not mentioned.

7. In continuation, the Single Judge took note that, in his claim to FIFA, the Claimant had requested from the Respondent the payment of EUR 80,000 as commission on the basis of the authorization as well as on the basis of the second authorization alleging that his work had led to the transfer of the player from the Respondent to Club G. Furthermore and in the same context, the Single Judge remarked that, for its part, the Respondent had contested the Claimant’s entitlement to receive the claimed amount arguing that it had not been represented by the latter and that the Claimant had not been involved in the conclusion of the transfer agreement.

8. With those considerations in mind and to begin with, the Bureau was keen to emphasise that, as clearly established in art. 19 par. 1 of the Regulations, a players’ agent shall be permitted to represent a player or a club only by concluding the relevant written representation contract with that player or club. Furthermore, as stated in art. 19 par. 4 of the Regulations, the representation contract shall explicitly state who is responsible for paying the player’s agent and in what manner. Besides, in accordance with art. 20 par. 5 of the Regulations, a players’ agent who has been contracted by a club shall be remunerated for his services by payment of a lump sum that has been agreed upon in advance.

9. In addition to the above and for the sake of good order, the Bureau was eager to emphasize that the Regulations only provide for the situation in which a representation agreement having been concluded between a players’ agent and a player fail to include a clear amount payable to the players’ agent as commission (cf. art. 20 par. 4 of the Regulations), while in a contractual relationship between a players’ agent and a club the incorporation of such remuneration in the relevant contract is mandatory (cf. par. II.8 above).

10. Bearing in mind the aforementioned, the Bureau recalled that neither the authorization nor the second authorization included any provision related to an amount of commission payable to the Claimant by the Respondent in connection with the transfer of the player. Furthermore and in the same context, the Bureau stressed that the Claimant had failed to provide any concrete evidence indicating that he had been involved in the conclusion of the transfer agreement as representative of the Respondent. In particular, the Bureau recalled that the Claimant was not mentioned in the transfer agreement and the letter dated 31 January 2010 provided by the latter on a later stage (cf. point I.9. above) was not addressed to him. Equally and with regard to the various emails enclosed to the Claimant’s claim, the Bureau was eager to emphasized that because the documents in question did not bear the signature of the Respondent, they could not, alone, indicate that there had been a contractual relationship between the Claimant and the Respondent in connection with the transfer of the player to Club G.

11. In view of all the above and, in particular, considering that the Claimant had failed to provide enough evidence to indicate that he had represented the Respondent in connection with the transfer of the player to Club G as well as bearing in mind that no written agreement seemed to have been concluded between the parties to the dispute indicating a concrete amount of commission payable by the Respondent to the Claimant in this respect, the Bureau decided that the claim of the Claimant had to be rejected due to lack of legal basis.

12. Lastly, the Bureau 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.

13. In this respect, the Bureau 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.

14. 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 above CHF 50,000 but less than 100,000, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 10,000.

15. In conclusion, considering that the case at hand was adjudicated by the Bureau and not by the Players’ Status Committee in corpore and that the present case did not show particular factual difficulties or specific legal complexities, the Bureau determined the costs of the current proceedings to the amount of CHF 6,000.

16. Consequently, the amount of CHF 6,000 has to be paid by the Claimant to cover the costs of the present proceedings.

III. Decision of the Bureau of the Players’ Status Committee

1. The claim of the Claimant, Players’ Agent A, is rejected.

2. The final costs of the proceedings in the amount of CHF 6,000 are to be paid by the Claimant, Players’ Agent A. Considering that the Claimant, Players’ Agent A, already paid the amount of CHF 3,000 as advance of costs, the latter has to pay the remaining amount of CHF 3,000 within 30 days as from the date of notification of the present decision 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: UBSWCHZH80

*****

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

Deputy Secretary General

Encl. CAS directives