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 17 January 2017

Decision of the Single of the Players’ Status Committee

passed in Zurich, Switzerland, on 17 January 2017,

by

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 / Counter-Respondent”

against the club

Club C, Country D

as “Respondent / Counter-Claimant”

regarding a contractual dispute arisen between the parties.

I. Facts of the case

1. On 13 August 2011, the Players’ Agent A (hereinafter referred as: the Claimant / Counter-Respondent or the agent) and the Club of Country D, Club C (hereinafter referred as: the Respondent / Counter-Claimant or the club) concluded an agreement (hereinafter: the agreement) in connection with the transfer of the player Player E (hereinafter: the player), according to which “in case of conclusion of a transfer contract regarding the transfer of football Player E [i.e. the player] from Club F to Club C [i.e. the club] our club obliges itself to pay You [i.e. the agent] […] the following commissions:

 Transfer commission: 10% of the amount of the transfer contract, but not more than 1,1 million Euro. Such payment shall be executed within 60 days from the signature of the transfer contract;

 Agent’s commission: 100’000 Euro at the beginning of each season during the validity of the player’s contract with Club C; 100’000 Euro at the end of each of the above mentioned season, in case the football player plays not less than 70% of the first team’s official games”.

2. On 29 August 2011, the Club of Country G, Club F, and the Respondent / Counter-Claimant concluded a transfer agreement for the transfer of the player from Club F to the Respondent / Counter-Claimant for a transfer fee amounting to EUR 12,900,000,000.

3. On 30 August 2011, the player and the Respondent / Counter-Claimant signed an employment contract valid from the date of signature until 30 June 2014, under the terms of which the player was entitled to receive from the Respondent / Counter-Claimant the yearly salary of EUR 600,000 net.

4. On 31 August 2011, the Company H “represented by Players’ Agent A [i.e. the Claimant / Counter-Respondent]” and the club concluded a representation contract (hereinafter: the contract) valid for 2 months and under the terms of which the “Club accepts to pay the Agent a commission amounting to EUR 1 000 000 (one million) in one lump sum payable within 07/10/2011 […]” for the transfer of the player to the club “within 31/08/2011”.

5. On 21 March 2014, the Claimant / Counter-Respondent lodged a claim with FIFA against the Respondent / Counter-Claimant arguing that the latter had failed to respect its contractual obligations. In this respect, the agent explained that although the club had paid the amount of EUR 1,000,000, it had failed to pay the remaining amount of EUR 600,000.

6. The agent explained to have acted on behalf of the club during the transfer of the player from Club F to the club. In this respect, the agent provided a declaration of the player dated 14 March 2014, who confirmed that “in August 2011 my [i.e. the player] former Club F and I have been contacted by licensed Players’ Agent A [i.e. the agent], representing Club C, who informed us about the interest of the Club C in my services. […] All negotiations for the conclusion of the labor contract between me and Club C were done through Players’ Agent A. I have agreed with him the personal terms and the content of my employment contract with Club C”. The agent maintained that the club by paying already part of the remuneration on 6 October 2011 in accordance with the agreement, admitted to be contractually bound with him.

7. Consequently, the agent requested from the club the total amount of EUR 600,000 as follows:

 EUR 300,000 “as instalments per beginning of each season of Player E [i.e. the player] in the Club (seasons 2011/2012, 2012/2013, 2013/2014)”.

 EUR 300,000 “per seasons in which Player E played for the Club in no less than in 70% of matches”.

8. On 29 May 2014, the club replied to the agent’s claim and rejected it in its entirety. It firstly contested the competence of FIFA to deal with the present matter as the Dispute Resolution Chamber of the Football Federation of Country D had already passed a decision in the same matter. In this regard, the club provided the decision of the Football Federation of Country D dated 23 January 2014, according to which it declared itself incompetent to hear the matter which had an international dimension and referred the parties concerned directly to the decision making bodies of FIFA.

9. As to the substance, the club argued that the agreement “does not have an official status: no reference number, not registered in the Club, not original signature” and therefore that the agreement can “only be considered as a preliminary arrangement between the Club and the Agent” and cannot be considered as “a unilateral conditional transaction in terms of the Civil Code of Country D”. The club further added that such “agreement” did not comply with FIFA regulations, in particular art. 19 par. 5 of the Players’ Agent Regulations.

10. Finally, the club argued to have already paid the amount of EUR 1,000,000 on 6 October 2011 in accordance with the contract dated 31 August 2011. Therefore, the club alleged to have complied with its obligations since it deemed that such contract had anyway superseded the agreement.

11. On 9 March 2015, the agent replied to the allegation of the club by stating that FIFA has jurisdiction to hear the present dispute as Football Federation of Country D did not enter into the merits of the dispute at all, only referring the parties concerned to FIFA.

12. As regards the substance, the agent claimed that the agreement was not a “preliminary agreement” since it “does not say that the Parties would enter into another final agreement later on”.

13. The agent also argued that even if the agreement would not contain all essentialia negotii of a representation contract, this would not result in the invalidity of the agreement. The agent deemed that the Players’ Agent Regulations provide for the imposition of sanctions in case players’ agents would not comply with such Regulations, however the agreements concluded between the parties concerned remain valid and binding upon the parties. Moreover, the agent deemed that the “non-registration” of the agreement within the Football Federation of Country D “has nothing to do with the validity of the representation contract” as it is only advisable and not compulsory to register representation contracts.

14. The agent further argued that the contract dated 31 August 2011 did not supersede the agreement, as the parties were different in the contract and in the agreement. Therefore, the agent deemed not being a party in the contract and therefore only based his claim on the agreement. The agent was of the opinion that such contract was concluded “to assign the debt of the Club and the credit of the Agent to third parties for financial and administrative purposes”. The agent deemed that the contract dated 31 August 2011 was concluded after the player was transferred from Club F to the club. Finally, the agent argued that the contract was “a simulation of a contract made to eventually enable a third party to substitute the Club and to pay the Agent part of his fee agreed” in the agreement and the financial contractual condition agreed upon in the agreement “cannot be affected by the simulated agency contract of 31 August 2011”.

15. Consequently, the agent reiterated his initial claim.

16. In its final comments dated 28 April 2015, the club reiterated its position and lodged a counter-claim against the agent requesting the reimbursement of the amount of EUR 1,000,000 paid on 6 October 2011 to the agent.

17. In particular, the club deemed that the “agent is wrong and misguided when he asserts that the Football Federation of Country D had not entered into the merits of the matter” as the grounds of the Football Federation of Country D Decision stated “that no valid representation contract was ever registered with the Football Federation of Country D”. Consequently, the club was of the opinion that FIFA was not competent pursuant to the principle of res iudicata.

18. The club further stated that the agent confirmed having received the amount of EUR 1,000,000 on 6 October 2011 “as the initial instalment of the agency remuneration set by” the agreement. Therefore, the club deemed that the agent acted in bad faith by stating that he was not a party of the contract dated 31 August 2011 as such payment was made based on said contract. The club also pointed out that the agent himself signed such contract and that the latter only acted through his Company H.

19. Equally, the club deemed that the contract was concluded only after the conclusion of the transfer of the player from Club F to the club as it can be seen from the ITC received on 1 September 2011, i.e. one day after the conclusion of the contract. In this respect and to support its allegations, the club provided the relevant ITC which was delivered on 31 August 2011 and received on 1 September 2011. The club also argued that the legal theory of the simulation “is not applicable at all to this matter as the agent failed to explain which was the purported cause or scope for the parties to establish such alleged simulation”.

20. Alternatively, in the event the agent would be considered entitled to receive a commission on the basis of the agreement, the club requested the reimbursement of the amount of EUR 1,000,000 paid on 6 October 2011 to the agent on the basis of the contract.

21. Furthermore, the club alleged that the first instalment of EUR 100,000 supposedly due at the beginning of each season was not due for the 2011/2012 season considering that the player was registered with the club only 6 months after the Championship of Country D had started. The club further argued that such amount was anyway time-barred.

22. Lastly, the club maintained that the second instalment of EUR 100,000 allegedly due “as for the Players’ sporting achievements in season 2011/2012” was not due as the player only played 21 matches out of 44 matches during that sporting season, i.e. less than 70% of the matches played by the club.

***

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 2014 and 2012). The present matter was submitted to FIFA on 21 March 2014. Therefore, the Single Judge concluded that the 2012 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 21 March 2014, 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 Association of Country B and a Club of Country D, regarding an allegedly outstanding commission.

5. As a consequence, the Single Judge would, in principle, be competent to deal with the matter at stake, which has an international dimension (cf. art. 30 par. 2 of the Regulations).

6. However, the Single Judge acknowledged that the club had contested the competence of FIFA’s decision-making body invoking the principle of the res iudicata. In this respect, it had referred to the decision passed by the Dispute Resolution Chamber of the Football Federation of Country D on 23 January 2014, in accordance with which the Football Federation of Country D declared itself incompetent to hear the dispute at hand due to its international dimension and advised the parties to refer the matter to FIFA.

7. The Single Judge further noted that agent, for his part, had rejected such allegation and insisted that FIFA has jurisdiction to deal with the present matter.

8. Accordingly, the Single Judge deemed it appropriate to briefly recall that on the basis of the principle of res iudicata, a decision-making body is not in a position to deal with the substance of a case in the event that another deciding body has already dealt with the same matter by passing a final and binding decision. Indeed, the parties to the dispute as well as the deciding authority are bound by the final and binding decision previously passed.

9. In view of the above, the Single Judge recalled that the decision that was taken by the Football Federation of Country D on 23 January 2014 was only related to the admissibility of the relevant claim of the agent. Equally, the Single Judge also recalled that no decision as to the substance of the dispute was passed by the Football Federation of Country D on 23 January 2014.

10. As a result thereof and in particular considering that on 23 January 2014 no decision was taken by the Football Federation of Country D as to the substance of the matter at stake, the Single Judge decided that, in casu, the principle of res iudicata did not apply. Therefore, the Single Judge is competent to take a decision on the present dispute.

11. 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.

12. In doing so, the Single Judge first observed that, on 13 August 2011, the agent and club had concluded the agreement in connection with the transfer of the Player E , according to which “in case of conclusion of a transfer contract regarding the transfer of football Player E [i.e. the player] from Club F to Club C [i.e. the club] our club obliges itself to pay You [i.e. the agent] […] the following commissions:

 Transfer commission: 10% of the amount of the transfer contract, but not more than 1,1 million Euro. Such payment shall be executed within 60 days from the signature of the transfer contract;

 Agent’s commission: 100’000 Euro at the beginning of each season during the validity of the player’s contract with Club C; 100’000 Euro at the end of each of the above mentioned season, in case the football player plays not less than 70% of the first team’s official games”.

13. Moreover, the Single Judge remarked that, on 31 August 2011, the Company H “represented by Players’ Agent A [i.e. agent]” and the club concluded a representation contract (hereinafter: the contract) valid for 2 months and under the terms of which the “Club accepts to pay the Agent a commission amounting to EUR 1 000 000 (one million) in one lump sum payable within 07/10/2011 […]” for transfer of the player to the club “within 31/08/2011”.

14. In continuation, the Single Judge took note that, in his claim to FIFA, the agent had acknowledged having received the amount of EUR 1,000,000 in accordance with the contract and requested from the club the additional payment of EUR 600,000 based on the agreement, corresponding to EUR 300,000 “as instalments per beginning of each season of Player E [i.e. the player] in the Club (seasons 2011/2012, 2012/2013, 2013/2014)” as well as EUR 300,000 “per seasons in which Player E played for the Club in no less than in 70% of matches”.

15. Furthermore and in the same context, the Single Judge acknowledged that, for its part, the club had rejected the claim of the agent arguing that it had already paid the amount of EUR 1,000,000 to him on 6 October 2011 in accordance with the contract. Therefore, the club alleged to have complied with its obligations since it deemed that such contract of 31 August 2011 had superseded the agreement. Equally, the Respondent deemed that the agreement was merely a preliminary arrangement and not a proper contract as it did not meet the formal requirements of a contract and did not comply with art. 19 par. 5 of the Regulations.

16. Bearing in mind all the aforementioned, the Single Judge was first eager to emphasize that the contract had undisputedly been signed by the agent himself. Hence, from the Single Judge’s point of view, the document in question had to be considered valid and binding upon the agent and the club.

17. In continuation, the Single Judge observed that the contract concluded by the parties on 31 August 2011 superseded the agreement of 13 August 2011 concluded between the same parties. What is more, the Single Judge was keen to highlight that the parties started executing the contract as the club had already paid the sum of EUR 1,000,000 to the agent for the transfer of the player to the club in accordance with the contract.

18. Moreover, the Single Judge also pointed out that the contract only provided for the contractual obligation of the club to pay the amount of EUR 1,000,000 to the agent by 7 October 2011 should the player be transferred to the club. The Single Judge recalled that the agent already received the payment of EUR 1,000,000 based on the contract for the services he rendered in connection with the transfer of the player to the club.

19. In light of all the aforementioned, taking into account that the contract was the only binding document between the parties as well as considering that the agent acknowledged having received from the club the payment amounting to EUR 1,000,000 in accordance with the contract, the Single Judge held that the club had complied with its contractual obligations.

20. In conclusion, the Single Judge decided that the claim of the agent is admissible and rejected as to the substance.

21. Finally, with regard to the counter-claim lodged by the club on 28 April 2015 for the reimbursement of EUR 1,000,000 paid to the agent on 6 October 2011, the Single Judge referred to the content of article 30 par. 4 of the Regulations which stipulates that “[T]he Players’ Status Committee or single judge (as the case may be) shall not hear any case subject to these regulations if more than two years have elapsed from the event giving rise to the dispute […]”.

22. Hence, the counter-claim having been lodged before FIFA on 28 April 2015 for the reimbursement of the sum of EUR 1,000,000 paid to the agent on 6 October 2011, the Single Judge concluded that such counter-claim was barred by the statutes of limitations. Therefore, the Single Judge considered the counter-claim of the club is inadmissible in accordance with article 30 par. 4 of the Regulations.

23. 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.

24. In this respect, the Single Judge reiterated that the claim of the agent is rejected. Therefore, the Single Judge concluded that the agent has to bear the entire costs of the current proceedings in front of FIFA.

25. 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 higher than CHF 200,000, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

26. In conclusion, considering the specificity of the matter as well as taking into account that the case at hand was adjudicated by the Single Judge and not by Players’ Status Committee in corpore, the Single Judge determined the costs of the current proceedings to the amount of CHF 18,000.

27. Therefore, the agent has pay CHF 18,000 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 A, is admissible.

2. The claim of the Claimant / Counter-Respondent, Players’ Agent A, is rejected.

3. The counter-claim of the Respondent / Counter-Claimant, Club C, is inadmissible.

4. The final costs of the proceedings in the amount of CHF 18,000 are to be paid by the Claimant, Players’ Agent A. Considering that the latter already paid the amount of CHF 5,000 as advance of costs at the start of the present proceedings, the Claimant, Players’ Agent A, has to pay the remaining amount of CHF 13,000 within 30 days as from the date of notification of the present decision to the following bank account with reference to case nr. XXX:

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. 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