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 11 August 2015

Decision of the Single Judge of the Players’ Status Committee

passed in Zurich, Switzerland, on 11 August 2015,

by

Geoff Thompson (England)

Single Judge of the Players’ Status Committee,

on the claim presented by the Players’ Agent

Agent A, country B

as “Claimant”

against the club

Club C, country D

as “Respondent”

regarding a contractual dispute between the parties.

I. Facts of the case

1. On 29 May 2007, the players’ agent licensed by the Football Association from country B, Agent A (hereinafter: the Claimant) and the player from country B Player E (hereinafter: the player) concluded a representation agreement (hereinafter: the agreement) valid for two years.

2. On 1 September 2008, the Claimant and the club from country D, Club C (hereinafter: the Respondent) signed a document (hereinafter: the acknowledgment) by means of which the Respondent acknowledged owing to the Claimant EUR 400,000 in connection with the transfer of the player. The acknowledgment specified, inter alia, that the relevant amount had to be paid as follows: EUR 100,000 until 15 February 2009; EUR 100,000 until 15 February 2010; EUR 100,000 until 15 February 2011; EUR 100,000 until 15 February 2012.

3. On 17 August 2009, the Claimant lodged a claim with FIFA against the Respondent requesting from the latter, inter alia, the payment of EUR 150,000, plus 1% interest per month on the amount of EUR 50,000 as from 15 February 2009 and on the amount of EUR 100,000 as from 15 February 2010.

4. On 21 February 2011, the Claimant informed FIFA that the parties had been able to reach an amicable settlement and therefore he withdrew his claim against the Respondent.

5. On 10 April 2012, the Claimant requested FIFA to reopen the proceedings against the Respondent arguing that the latter had so far only paid the first two instalments due in accordance with the acknowledgment whereas the last two instalments, due on 15 February 2011 and on 15 February 2012 respectively, were still outstanding.

6. On 18 December 2012, FIFA was informed by the Football Association of country B that the Claimant’s license as players’ agent had been cancelled because the latter had “put forward his candidacy to become Sporting Director of (..) Club F, Country B”.

7. In view of the above, the parties to the dispute were informed by FIFA that, in accordance with art. 6 par.1 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber, only players’ agent duly licensed by their respective associations can be parties in proceedings before FIFA and that, consequently, considering the agent’s loss of license, FIFA was not in a position to further intervene in the matter.

8. Nevertheless, the Claimant insisted for a formal decision to be taken by FIFA’s deciding bodies. Hence, on 5 June 2013, the Single Judge decided that the claim of the Claimant was not admissible (hereinafter: the decision).

9. On 19 June 2013, the findings of the aforementioned decisions were notified to the parties.

10. On 14 February 2014, the Claimant lodged a new claim with FIFA against the Respondent for breach of contract and requested from the latter the payment of the last instalment due in accordance with the acknowledgment, i.e. the sum of EUR 100,000, plus the “applicable VAT” as well as 5% interests as of 15 February 2012.

11. In this respect, the Claimant contested beforehand the applicability of the principle of res iudicata on his claim arguing that the substance of the dispute had not been entered into by the Single Judge on 5 June 2013.

12. In its response on 15 and 28 April 2015, the Respondent rejected the Claimant’s claim in its entirety.

13. The Respondent firstly referred to the decision of the Single Judge dated 5 June 2013 and requested for the Claimant’s claim to be declared inadmissible “due to the res judicata principle”.

14. In addition and “for the sake of good order only”, the Respondent stressed that “any claim pertaining to unpaid amounts allegedly due two years prior to this claim being lodged (..) shall not be heard pursuant to the applicable procedural and substantive regulations concerning statutory time limits”.

15. Furthermore, the club accused the Claimant of having breached art. 19 par. 8 of the Players’ Agents Regulation by also representing the player when the relevant transfer occurred.

16. According to the Respondent, it had been unaware of the existence of the agreement and provided FIFA, as evidence, with a letter, allegedly sent to the Football Association from country B on 27 April 2010, in which it had requested the latter association to “verify if the Players’ Agent Mr. Agent A [i.e. the Claimant] (..) subscribed a representative mandate with our (..) player (..) Player E [i.e. the player]”.

17. Therefore, the Respondent considered the Claimant’s claim “illegal” and requested for the matter to be “referred to the FIFA Disciplinary Committee in order for it to commence disciplinary proceedings against the (..) agent (..)”.

18. In his replica on 15 May 2015, the Claimant reiterated the content of his claim.

19. In addition, the Claimant contested any allegation related to the prescription of his claim.

20. Furthermore, the Claimant argued having only represented the player and not the Respondent and alleged that it had been the Respondent’s proposal to pay his commission. In this regard, the agent provided FIFA with a statement of the player dated 14 May 2014 in which the latter confirmed having been represented by the Claimant. In such document, the player confirmed in particular having been represented by the Claimant “since the time I [i.e. the player] was in the youth academy of Club F and that during the time of his engagement he [i.e. the Claimant] assisted me and helped during transfers from Club F to Club G, from Club G to Club H and during the transfer from Club H to Club C [i.e. the Respondent]”. In the same statement, the player also confirmed that “since the first contact” the Respondent had been “aware with the fact that Agent A [i.e. the Claimant] is my agent”. Finally, the player mentioned that he had not paid any commission to the Claimant in connection with his transfer to the Respondent and elucidated that he had been “aware of the fact that it was agreed that his services were going to be paid by Club C [i.e. the Respondent]”.

21. In continuation, the Claimant questioned the authenticity of the letter allegedly sent by the Respondent to the Football Association from country B on 27 April 2010 and pointed out that even if he had represented both parties at the same time “quid non”, there was “no clause in the PAR [i.e. the Players’ Agents Regulations] which state that such contract would be null and void”.

22. Finally, the Claimant requested FIFA to establish that the Respondent had failed to pay him “the third and fourth instalment of EUR 100,000 on 15 February 2011 and 2012 amounting to EUR 200,000”.

23. Nevertheless, the agent only claimed the payment of the instalment due in February 2012.

24. In its final statement dated 11 June 2015, the Respondent insisted on the inadmissibility of the claim of the Claimant on the basis of the “res iudicata principle”.

25. In addition, the Respondent questioned the fact that the Claimant was “actually a players’ agent and held a valid license” when he had lodged his new claim in 2014.

26. Furthermore, the Respondent requested that “any claim pertaining to unpaid amounts allegedly due two years or more prior to the claim being lodged (..) shall not be heard pursuant to the applicable procedural and substantive regulations concerning statutory time limits”. In the same context, the Respondent specified that no evidence had been provided by the Claimant indicating that he had lodged his claim on 14 February 2014 “while the whole claim related to a document dated 1st September 2008, i.e. almost seven years ago”. Besides, the Respondent specified that in accordance with “par. 4 Article 30 of the FIFA Players’ Agents Regulations (..) the time limit for filing claims (..) by the agent is reduced to six months since the players’ agent has terminated his activity.” Therefore, since the Claimant had terminated his activity on 18 December 2012, the club deemed that “any possible claim (..) in relation to his activity occurred before his termination should have been filed no later than 18th May 2013”.

27. In continuation, the Respondent accused the Claimant of having failed to provide evidence indicating that it had sent the necessary invoice for the payment of the claimed amount.

28. Finally, the Respondent, referring to its “exchange of correspondence with the Football Federation from country B”, pointed out once again that he had been unaware of the fact that the Claimant had been the player’s representative.

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 14 February 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 14 February 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 from 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 Respondent had contested the competence of FIFA’s decision-making body invoking the principle of the res iudicata. In this respect, the Respondent had referred to the decision passed by the Single Judge of the Players’ Status Committee on 5 June 2013, in accordance with which the first claim of the Claimant against the Respondent dated 17 August 2009 was declared not admissible.

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

8. In view of the aforementioned allegations, 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, although the first claim of the Claimant dated 17 August 2009 did concern the same matter and the same parties involved in the present dispute, the decision passed on 5 June 2013 by the Single Judge of the Players’ Status Committee was only related to the admissibility of the relevant claim of the Claimant who, back then, was no longer a players’ agent licensed by the Football Association of country B. Equally, the Single Judge also recalled that no decision as to the substance of the dispute was taken on 5 June 2013 by the Single Judge of the Players’ Status Committee.

10. As a result thereof and in particular considering that on 5 June 2013 no decision was taken as to the substance of matter at stake, the Single Judge decided that, in casu, the principle of res iudicata does not apply. Therefore, the Single Judge is competent to take a decision on the present dispute.

11. Having established the aforementioned, the Single also noted that the Respondent had contested the admissibility of the claim of the Claimant alleging that such claim was time-barred.

12. In this regard, the Single Judge referred to art. 30 par. 4 of the Regulations in accordance with which he shall not hear any case subject to the Regulations if more than two years have elapsed from the event giving rise to the dispute.

13. Hence, taking into account that the claim of the Claimant was lodged on 14 February 2014 and considering that the last instalment requested by the Claimant in the present dispute was due on 15 February 2012, the Single Judge concluded that the claim of the Claimant had been lodged within the two years deadline provided in the Regulations and therefore that it was not time-barred.

14. In addition and for the sake of good order the Single Judge found it worthwhile to mention that, when the present claim was lodged, i.e. on 14 February 2014, the Claimant was a players’ agent licensed by the Football Association of country B. Therefore, the provision included in art. 30 par. 4 of the Regulations and related to claims lodged after a players’ agent has terminated his activity is in casu not applicable.

15. 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.

16. In doing so and first of all, the Single Judge took note that, on 29 May 2007, the Claimant and the player had concluded a representation agreement valid for two years.

17. Furthermore, the Single Judge noted that, on 1 September 2008, the Claimant and the Respondent had signed a document (hereinafter: the acknowledgment) in connection with the transfer of the player in accordance with which the Claimant was entitled to receive from the Respondent the total amount of EUR 400,000 payable in four instalments of EUR 100,000 each. In addition, the Single Judge also remarked that it remained undisputed by the parties that the Respondent had already paid to the Claimant the first two instalments due as per the acknowledgment.

18. In continuation, the Single Judge observed that, in his claim to FIFA, the Claimant had requested the payment of the last instalment due as per the acknowledgment in the amount of EUR 100,000, arguing that the relevant sum was still outstanding. Furthermore and in the same context, the Single Judge observed that, for its part, the Respondent, although admitting that it had signed the acknowledgment, had rejected the claim of the Claimant arguing that the latter had breached art. 19 par. 8 of the Regulations by also representing the player.

19. Equally, the Single Judge also took note of the fact that, in one written statement, the player had confirmed having given his written consent for the Respondent to pay the Claimant’s commission on his behalf and had contested having paid any commission whatsoever to the latter in connection with his transfer to the Respondent.

20. Bearing in mind all the aforementioned, the Single Judge turned his attention to the acknowledgment and was eager to once again emphasize that such document had undisputedly been signed by both the Claimant and the Respondent. Hence, from the Single Judge’s point of view as well as in accordance with his well-established jurisprudence, regardless of whether a possible violation of art. 19 par. 8 of the Regulations had in casu occurred or not, the document in question had to be considered valid and binding upon the Claimant and the Respondent.

21. Equally, the Single Judge underlined that the Respondent had uncontestably paid to the Claimant two out of four instalments due as per the acknowledgment. In the Single Judge’s opinion, by paying the sums in question, the Respondent had confirmed its commitment to the acknowledgment and accepted its contents.

22. Besides, in the same context and for the sake of good order, the Single Judge was eager to emphasize that the second instalment due as per the acknowledgement seemed to have been paid by the Respondent after the Claimant had already lodged his first claim with FIFA against it, and after the Respondent had already accused the Claimant of having breached art. 19 of the Regulations during the first proceedings pending in front of FIFA.

23. Similarly, the Single Judge pointed out that the involvement of the Claimant in connection with the transfer of the player to the Respondent had remained uncontested.

24. In continuation, the Single Judge turned his attention to the content of art. 19 par. 4 of the Regulations and recalled that the provision in question specified, inter alia, the following: “Payment shall be made exclusively by the client of the players’ agent directly to the players’ agent. However, after the conclusion of the relevant transaction, the player may give his written consent for the club to pay the player’s agent on his behalf”. As to that, the Single Judge pointed out once again that in accordance with the documentation on file, the player had given, after the conclusion of the transaction, his consent for the Respondent to pay the Claimant’s commission on his behalf.

25. In light of all the aforementioned, considering the basic legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, bearing in mind the contents of the acknowledgement as well as recalling the content of art. 19 par. 4 of the Regulations and taking into account the fact that the player had given his consent for the Claimant’s commission to be paid by the Respondent as well as keeping in mind the fact that the Respondent had already paid half of the amount due to the Claimant, the Single Judge came to the conclusion that, in order to comply with its contractual obligations towards the Claimant, the Respondent has to pay to the latter the sum of EUR 100,000, corresponding to the last instalment due to the Claimant as per the acknowledgement.

26. Having decided the aforementioned and with regard to the Claimant’s request related to the payment of the “applicable VAT” on the sum of EUR 100,000, the Single Judge underlined that the relevant request did not comply with the requirements included in art. 9 par. 1 of the Procedural Rules. In particular, the Claimant had failed to specify the amount requested from the Respondent as “applicable VAT”. Hence, the Single Judge decided that the request in question cannot be taken into account and has to be rejected.

27. In continuation and as to the Claimant’s claim related to the payment of 5% on the sum of EUR 100,000 as of 15 February 2012, the Single Judge referred to his well-established jurisprudence and determined that the Respondent has to pay 5% interest per year to the Claimant on the outstanding amount of EUR 100,000 as of the day after the sum in question became due, i.e. as of 16 February 2012.

28. In conclusion, the Single Judge decided that the claim of the Claimant is admissible and partially accepted and that the Respondent has to pay to the Claimant EUR 100,000, plus an interest at a rate of 5% per year on the said amount from 16 February 2012 until the date of effective payment.

29. 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.

30. In this respect, the Single Judge reiterated that the claim of the Claimant is partially accepted and that the Respondent is the party at fault. Therefore, the Single Judge concluded that the Respondent has to bear the entire costs of the current proceedings in front of FIFA.

31. 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 100,000 but lower than CHF 150,000, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 15,000.

32. In conclusion, and considering 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 10,000.

33. Consequently, the Respondent has to pay CHF 10,000 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, Agent A, is admissible.

2. The claim of the Claimant, Agent A, is partially accepted.

3. The Respondent, Club C, has to pay to the Claimant, Agent A, within 30 days as from the date of notification of the present decision, the total amount of EUR 100,000, plus an interest at a rate of 5% per year on the said amount from 16 February 2012 until the date of effective payment.

4. If the aforementioned sum, plus interest, 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.

5. Any other claims lodged by the Claimant, Agent A, are rejected.

6. The final costs of the proceedings in the amount of CHF 10,000 are to be paid by the Respondent, Club C, within 30 days as from the date of notification of this decision, as follows:

6.1. The amount of CHF 7,000 has to be paid to FIFA to the following bank account with reference to case nr. xxxxxxxxxxx:

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 3,000 has to be paid directly to the Claimant, Agent A.

7. The Claimant, Agent A, is directed to inform the Respondent, Club C, immediately and directly of the account number to which the remittances under points 2. and 6.2. 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. 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

Acting Secretary General

Encl. CAS directives