Vincenzo d’Ippolito v. Danubio FC

I. Did the parties conclude an agency agreement relating to a transfer of the Player in the

2006-2007 season?

II. If yes, was that agency agreement formally valid?

III. If yes, did the Appellant provide services under this agency agreement?

IV. If yes, do these services entitle the Appellant to claim an agency fee?

a. Any explicit agreement for an agency fee? b. If not, determination by the Panel?

V. If the Appellant is entitled to an agency fee, is the Respondent obliged to pay interest on

the amount of the agency fee?

I. Did the parties conclude an agency agreement relating to a transfer of the Player in the 2006-2007 season?

8.2 An agreement between the parties, relating to the transfer of the Player from the Respondent to the Italian club US Palermo at the end of January 2007, could have been concluded (a) at an alleged meeting of the parties in a restaurant in Montevideo, Uruguay in November 2006 or (b) anytime and confirmed by forwarding the Authorization dated 15 January 2007.

a. Meeting in a restaurant in Montevideo, Uruguay in November 2006

8.3 The Appellant submitted that he met with representatives of the Respondent in November 2006 and, at this occasion, was asked to assist the Respondent with a potential transfer of the Player to an Italian club. According to the Appellant’s submissions the meeting took place in

Montevideo, Uruguay, in a restaurant called “Rumi” and the Respondent’s representatives allegedly were Mr Arturo del Campo, the Respondent’s then President, and Mr Alberto Batista, the Respondent’s “Gerente General”. The Respondent disputed that meeting at all and also any meeting with the Appellant relating to a transfer of the Player.

8.4 The burden of proof for an agreement between the parties lies with the Appellant who refers to it as the basis of his claim. The Appellant was not able to exactly state when this alleged meeting took place but rather submitted that it was between 10 and 20 November 2006 when he stayed in the Sheraton Hotel in Montevideo during a business trip to South America. The submitted invoice of the Sheraton Hotel in Montevideo (Appellant’s exhibit 4) actually confirms the check-in and check-out dates and states the Appellant’s name. However, it can only prove Appellant’s stay in that hotel but not a meeting with the Respondent’s representatives. In addition, no one of the five witnesses called by the Appellant or any other witness did confirm such a meeting.

8.5 To the contrary, during his testimony at the hearing, Mr Batista, expressly denied a meeting with the Appellant in November 2006 or on any other date. He even testified that the Appellant and also a restaurant called “Rumi” were completely unknown to him.

8.6 Consequently, the Panel holds that the Appellant failed to prove that a meeting between the parties took place in November 2006 and therefore also the conclusion of an agreement between the parties at this occasion.

b. Authorization dated 15 January 2007

8.7 The Appellant also submitted that the Authorization dated 15 January 2007 and issued by the Respondent’s “Gerente General”, Mr Batista, confirmed the Appellant’s mandate given by the Respondent.

8.8 At the hearing, Mr Batista testified that he had issued and signed the Authorization upon request of Ms Zarate, administrative manager of the company Vansomatic SA, for the only reason to do Ms Zarate a favour. Mr Batista also stated that he did not inform the Respondent’s President about that issue. Instead, he forwarded the signed Authorization by fax to the office of Mr Pablo Bentancur at the company Vansomatic SA without the knowledge of the Respondent’s President whom Mr Batista referred to as the Respondent’s only legal representative.

8.9 In her testimony at the hearing, Ms Zarate confirmed the statements of Mr Batista. She added that she had been asked by the Appellant whether Vansomatic SA could obtain from the Respondent a document certifying his authorization to act on behalf of the Respondent regarding a transfer of the Player to an Italian club. According to her testimony, the reason why the Appellant had asked for that document were potential problems for the Appellant regarding his agent license after publication of two articles in Italian journals indicating Mr Triulzi as the Player’s agent. Because she knew the Appellant as a business partner of Vansomatic SA since 2000, she asked Mr Batista by phone for an authorization document to avoid any problems for

the Appellant with the FIGC. After receiving the Authorization she forwarded that document by fax from the office of Vansomatic SA to the Appellant.

8.10 In the FIFA Decision, the FIFA Judge concluded that the Authorization “could not be viewed as having no legal effects” and based his decision on the good faith principle whereas the Appellant could have in good faith ignored the alleged lack of sufficient representation powers to sign the Authorization and to bind the Respondent.

8.11 At this point, the main question for the Panel is whether the Appellant was mandated by the Respondent or not and whether the Authorization has to be seen as a mandate or even as a confirmation of a mandate given to the Appellant. This has to be considered under the circumstances of the present case.

8.12 One of these circumstances is the position of Mr Batista within the Respondent. The Respondent argued that Mr Batista has only been an administrative clerk without any power to legally bind the Respondent and that his title “Gerente General” is only an honorary title without any legal effect. Mr Batista confirmed these arguments at the hearing and additionally testified that he personally had never been involved in any negotiations with players and that the only legal representative of Respondent was its President. However, at the hearing the Appellant referred to exhibits of Respondent’s Answer where Mr Batista had signed two orders of payments to be transferred from a bank account held by the Respondent at a bank in Miami, Florida, USA in the amounts of EUR 58,000.00 and EUR 151,625.00 (Respondent’s exhibit 37). These orders were written on the Respondent’s official letterhead, stamped with the Respondent’s seal and co-signed by a person named “Arminak Tavojkian”. When confronted with these documents, Mr Batista testified that he did not remember those payments, had no explanation for his signatures and did not know a person named “Arminak Tavojkian”.

8.13 A further point to be considered by the Panel is the relationship between the Appellant, the Respondent and the company Vansomatic SA. Taking into consideration the parties’ submissions and the witnesses’ testimonies on this issue the Panel finds that the Respondent knew the Appellant as an agent at least since August 2004 when the Respondent ’s team stayed for a trainings camp in Italy. Furthermore, the Panel has no reason to doubt about the correctness of Mr Bentancur’s testimony that in the past the Respondent had given authorizations to both, the Appellant and Vansomatic SA, for negotiations in regard to player transfers.

8.14 In addition, the Panel notes that US Palermo was aware of the Authorization as Mr Sagramola, CEO of US Palermo, testified at the hearing and as it was already mentioned in Palermo’s letter of 26 January 2007 to the Respondent which was signed by Mr Foschi, Sports Director of US Palermo. According to Mr Sagramola’s testimony, Mr Foschi was the person responsible for negotiations regarding player transfers and in this regard empowered to send letters with legal binding effect.

8.15 The Panel is of the view that, if the Respondent, except Mr Batista, actually did not have any knowledge about the Authorization until then, one would have expected the Respondent to

reply to US Palermo on this issue or even to contact the Appellant. However, the Respondent remained silent and did not object this point. As testified by Mr Corvino, Sports Director of Club Fiorentina, the Appellant got also in contact with him regarding a potential transfer of the Player and at this occasion showed the Authorization to Mr Corvino who accepted it without any doubt.

8.16 Given the above, the Panel is confident to hold that the Authorization at least confirms a mandate given by the Respondent to the Appellant to start negotiations with Italian clubs in order to transfer the Player. The Panel finds that Mr Batista was entitled to legally bind the Respondent regarding the payment of high amounts and the Respondent failed to show that Mr Batista was in contrast not entitled to sign documents like the Authorization. At least a fter receipt of Palermo’s letter of 26 January 2007, the Respondent’s President was aware of the Authorization given to the Appellant. However, before the signing of the Player’s transfer agreement, the Respondent has never objected at any time that it was not represented by the Appellant. Therefore, the Respondent has to be liable at least for the legal appearance of an authorization in which a bona fide third party placed confidence. Such a third party was US Palermo as proven by Mr Sagramola’s testimony and Palermo’s letter of 26 January 2007 to the Respondent.

8.17 Consequently, the Panel holds that a mandate was given and an agency agreement concluded between the parties regarding the transfer of the Player to an Italian club.

II. Was that agency agreement formally valid?

8.18 The Respondent submitted that the Authorization did not meet the requirements under the FIFA and FIGC Regulations because it was not in written form and not registered with the FIGC. In addition, any remuneration by a lump sum had to be agreed upon in advance. Therefore, any agreement on an agency fee for the Appellant would be invalid.

8.19 The relevant provisions of the FIFA Regulations state as follows: “Art. 12 A players’ agent may represent or take care of the interests of a player or club in compliance with art. 11 only if he has concluded a written contract with the player or club. […] The Contract shall explicitly mention who is responsible for paying the players’ agent’s fee, the type of fee and the prerequisite terms for the payment of the fee. […] 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”.

8.20 The Panel notes that the Authorization is in written form but not drafted on the standard forms provided by FIFA and FIGC. The Authorization also does not contain any statement about the payment of an agency fee.

8.21 However, the Panel holds that such failures do not invalidate the entire agency agreement. If agents fail to comply with the requirements of Article 12 of the FIFA Regulations, Article 15 of the FIFA Regulations stipulates that “[p]layers’ agents who abuse the rights accorded to them or contravene any of the duties stipulated in these regulations are liable to sanctions”. But the FIFA Regulations do not state the consequence of a failure regarding the form of an agency agreement or payment details as to be the invalidity of an agency agreement. The same applies to the FIGC Regulations. That said, it has to be stressed that all regulations and jurisprudence the Respondent referred to do not foresee the invalidity of an agency agreement in case of failure to comply with the requirements stipulated by FIFA or FIGC. In fact, they only foresee the chance to impose sanctions. Therefore, the Panel finds that such provisions cannot invalidate an agency agreement and agents, clubs or players not following the FIFA or FIGC Regulations can only be subject to sanctions of the respective associations or federations, i.e. in the present ca se FIFA and FIGC. Of course, in addition, agents who do not comply with FIFA Regulations will not be able to seek for assistance or protection by FIFA.

8.22 The same applies even after taking in consideration the decision of the FIFA Single Judge of the Players’ Status Committee in the case “Casini v. Vestel Manispor” of 2 September 2008 to which the Respondent referred in its closing statement at the hearing and of which a copy was provided upon the Panel’s request after the hearing. In that decision, the claim of an agent for an agency fee was denied based on the fact that no written agency agreement existed. However, the agent’s request was not dismissed because of invalidity of the agency agreement due to the failure of written form. In that case, the claim was rejected because it could not be established that the club agreed to pay to the agent any commission.

8.23 The Panel agrees that the failure to conclude an agreement in written form according to the FIFA or FIGC Regulations can (i) make it impossible for a party to seek protection from FIFA and (ii) create consequences for the consideration of an entitlement for agency fee and about the correct amount of an agency fee. However, the failure to conclude an agreement in written form is no question of the validity of an agency agreement per se.

8.24 The Panel also agrees that the alleged agreement on an agency fee of 10% of a transfer fee is an agreement for a lump sum proportion of a transfer fee which shall be agreed upon in advance according to Article 12 par. 8 of the FIFA Regulations. However, considering the wording of this provision, the used term “shall” clearly shows that the FIFA Regulations are not mandatory.

8.25 Consequently, the Panel holds that the mandate given to the Appellant by the Respondent does not show any points which could create doubt about the validity of the agency agreement.

III. Did the Appellant provide services under this agency agreement?

8.26 According to Article 11 lit. d of the FIFA Regulations, a licensed players’ agent has the right to take care of the interests of any club which requests him to do so.

8.27 The Appellant is a professional players’ agent licensed by the FIGC and the Authorization states the services to be rendered by the Appellant as “to begin on exclusive basis negotiations related to the transfer of [the Player] in the territory of Italy”.

8.28 At the hearing, Mr Corvino, Sports Director of the Italian club Fiorentina, testified that he was contacted by the Appellant by phone regarding a potential transfer of the Player. Thereafter, he remained in contact with the Appellant and later he had a phone call with the Respondent’s President making a proposal for a transfer of the Player. Fiorentina also made a written offer dated 24 January 2007. Mr Corvino also testified that he had never been in contact with the Respondent before he was contacted by the Appellant.

8.29 Mr Alessio Secco, Sports Director of the Italian club Juventus FC, stated at the hearing that he was one of the persons within Juventus FC responsible for player transfers. He further testified that the Appellant came to his office without any request of Juventus FC to speak about a potential transfer of the Player. Mr Secco knew the Appellant as a professional agent but due to financial reasons Juventus FC was not interested in a transfer of the Player.

8.30 Mr Sagramola, CEO of US Palermo, testified at the hearing that he was aware of a contact between the Appellant and Mr Foschi, who was the Sports Director of US Palermo at the time of the Player’s transfer and in this position responsible for negotiations regarding player transfers. In his testimony, Mr Sagramola also referred to the letter of 26 January 2007 sent from US Palermo to the Respondent’s President mentioning the Appellant as agent involved in the Player’s transfer.

8.31 Considering the witness testimonies and the parties’ submissions, the Panel finds that the Appellant contacted several Italian clubs regarding the transfer of the Player. At least the Italian clubs Fiorentina and US Palermo, each contacted by the Appellant, started detailed negotiations and submitted offers to the Respondent while the Respondent replied to both. Consequently, the Appellant rendered those services as asked to do according to the Authorization.

IV. Do these services entitle the Appellant to claim an agency fee?

8.32 The Respondent argued that the Appellant did not participate in the negotiations between the Respondent and US Palermo and did not provide any services to the Respondent regarding the transfer of the Player. The Respondent further submitted that a mere introduction should not be sufficient for claiming an agency fee and in this context referred to CAS jurisprudence, in particular CAS 2006/A/1019. The quoted part of that award reads as follows: “It is an accepted legal principle that subject to any express terms to the contrary, where the agency contract provides that the agent earns his remuneration upon bringing about a certain transaction, he/she is not entitled to such a remuneration unless he/she is the effective cause of the transaction being brought about”.

8.33 First of all, the Panel holds that the quoted decision was about an agency agreement between a player and an agent. Instead of this, the agency agreement subject to the present dispute was

agreed between a club and an agent. Therefore, the two cases cannot be considered as being identical.

8.34 Secondly, the quoted section of the decision CAS 2006/A/1019 states that “the agent earns his remuneration upon bringing about a certain transaction” and “he/she is not entitled to such a remuneration unless he/she is the effective cause of the transaction being brought about”. This has to be understood as an agreement to pay any remuneration only in the case of a successful transfer (“transaction”) of a player. It is different in the present dispute. The Authorization shows that the Appellant was obliged to “begin negotiations”, in other words to offer the Player to Italian clubs for a potential transfer. As stated above, the Appellant has rendered those services according to the mandate given to him.

8.35 Even if one would demand for a “causal link” between the services rendered and the transfer of the Player from the Respondent to US Palermo, the Panel finds that such a “causal link” appears in the present case. As testified by Mr Sagramola, the Appellant contacted US Palermo concerning a potential transfer of the Player and in the end, i.e. only a few days later, the Player was transferred from the Respondent to US Palermo.

8.36 When considering Swiss law, which is subsequently applicable in the present proceedings, the Panel notes that the Swiss provisions for brokerage contracts distinguish between two types of mandates, i.e. a contract whereby the broker is instructed to alert the principal to an opportunity to conclude a contract or to facilitate the conclusion of a contract (Article 412 par. 1 Swiss CO). According to the Authorization the Appellant was obliged “to begin negotiations” with Italian clubs but had not to conclude the transfer contract on behalf of the Respondent. Therefore, t he Appellant’s absence at the further negotiations and/or the signing of the transfer agreement does not affect the services actually rendered by the Appellant.

8.37 Thus, the Panel holds that a “causal link” exists between the Appellant’s services rendered for the Respondent on the one hand and the transfer of the Player from the Respondent to US Palermo on the other hand. However, to decide any claim of the Appellant for agency fee, the Panel needs to consider (a) whether the parties explicitly agreed on the remuneration of agency fee and, (b) in the absence of such an agreement, the Panel’s power to determine an amount.

a. Any explicit agreement for an agency fee?

8.38 The burden of proof for an explicit agreement for remuneration of agency fee lies with the party which claims the agency fee. Thus, the Appellant has to prove his allegation that the parties agreed on an agency fee of 10% of the transfer fee for the Player.

8.39 The Appellant submitted that he was verbally promised to receive a commission of 10% of the transfer fee when he met with representatives of the Respondent in a restaurant in Montevideo, Uruguay, in November 2006. As stated above, the Respondent objected that this meeting actually took place and Appellant failed to prove it.

8.40 For further proof of his allegation, the Appellant referred to Mr Corvino’s testimony at the hearing, to Mr Corvino’s witness statement and to the letter dated 26 January 2007 from US Palermo (signed by Mr Foschi) to the Respondent’s President.

8.41 Although the letter of 26 January 2007 mentions the Appellant as the “FIFA agent in Italy responsible for handling the potential transfer of [the Player]” and that “any consideration due to [the Appellant] is to be included in the transfer amount” it does not mention the allegedly agreed 10% agency fee. The statements in the letter of 26 January 2007 do not prove an agreement between the parties for remuneration of 10% of the transfer fee for the Player.

8.42 The same applies to the witness statement and the further testimony of Mr Corvino at the hearing. In his witness statement, Mr Corvino testified about a statement of the Appellant that “he had arranged with [the Respondent] to receive from [the Respondent] 10% of the transfer fee agreed upon related to the Player’s potential transfer”. However, Mr Corvino was not personally present when the alleged remuneration should have been agreed. Thus, Mr Corvino’s statement is only hearsay and taking into consideration that the quoted statement came from the Appellant himself and not from any third person present when the agency fee was allegedly agreed, the Panel finds that the Appellant has not proven the alleged verbal agreement on an agency fee of 10%.

8.43 Consequently, the Panel holds that the parties did not agree on an agency fee of 10% of the transfer fee for the Player.

b. Determination by the Panel?

8.44 Although an explicit agreement on an amount for agency fee has not been proven, the Panel deems itself empowered to determine (aa) whether the parties generally agreed on the payment of agency fee and if yes, (bb) about the amount to be remunerated to the Appellant.

aa. General agreement on agency fee?

8.45 The question for the Panel is whether the parties agreed to pay the Appellant for his services or whether the Appellant has rendered his services for free.

8.46 At the hearing, Mr Secco was asked about his experience of agents providing services without fees and he answered that this “sometimes” happens, e.g. when players were offered by agents who did not officially represent that players.

8.47 To the contrast, Article 1 par. 1 subpar. 2 of the FIFA Regulations presumes that agents provide their services “for a fee”. Also Article 412 par. 1 CO contains a presumption that services under a brokerage contract are provided “in exchange for a fee”.

8.48 In the FIFA Decision, based on Article 18 par. 3 of the FIFA Regulations, the FIFA Judge held that an agent cannot receive part of the transfer fee as remuneration. Article 18 par. 3 of the FIFA Regulations reads as follows: “A club which pays another club compensation shall pay it directly to the beneficiary club. It is strict forbidden for the club making the remittance to pay any of the amount, either partially or wholly, to the players ’ agent, not even as remuneration”.

8.49 The Panel holds that from a strict interpretation approach this provision just says that payment cannot be made from the new club to the agent but rather must be made from club to club. It does not go as far as to prohibit an agent from being entitled to a lump sum proportion of the fee, i.e. if that was paid from club to club and then distributed to the agent from the receiving club. Thus, the Panel concludes that Article 18 par. 3 of the FIFA Regulations does not prohibit the Appellant to claim an agency fee from the Respondent as the “old” club which asked the Appellant rendering services concerning the Player’s transfer.

8.50 The letter dated 26 January 2007 of US Palermo to the Respondent’s President, where a “consideration due to [the Appellant]” was mentioned, and the subsequent silence by the Respondent show that the Respondent was aware of the fact that the Appellant did not render his services for free but rather for a commission. Considering also the presumptions in Article 1 par. 1 subpar. 2 of the FIFA Regulation and Article 412 par. 1 Swiss CO, the Panel finds that both parties agreed to have the Appellant’s services rendered for an agency fee.

bb. Amount to be remunerated to the Appellant?

8.51 Based on the fact that the parties agreed to pay an agency fee to the Appellant for rendering hi s services but failed to agree its amount, the Panel has to determine the amount of the agency fee by considering the applicable law, i.e. the FIFA Regulations and Swiss law.

8.52 Article 11 par. 7 of the FIFA Regulations stipulates for an agency agreement bet ween an agent and a player how the remuneration of the agent has to be determined if the agent and the player “cannot reach agreement on the amount of remuneration to be paid or if the representation contract does not provide for such remuneration”. However, the FIFA Regulations fail to stipulate the determination in the event the amount of an agency fee regarding an agency agreement between an agent and a club is unclear.

8.53 First it must be analyzed whether an application by analogy of Article 12 par. 7 of the FIFA Regulations would be justified. Such rule foresees, as a kind of “default”, a fee of 5% of the annual basic gross income that an agent has negotiated for the player represented by him. Taking in consideration the submissions made and the circumstances of this case, the Panel is of the view that no such analogy can be made: In fact, the Panel is not aware of the salary of the Player, nor has Appellant ever claimed to have negotiated such a salary. Finally, no submission was filed asking the Panel to take in consideration such an income base. Therefore, the Panel cannot rely on Article 12 par. 7 of the FIFA Regulations.

8.54 In lack of any applicable provision under the FIFA Regulations, the Panel has to look at Swiss law (in particular Articles 412 et seq. Swiss CO) to address the issue.

8.55 Article 414 Swiss CO reads as follows: “Where the amount of remuneration is not stipulated, the parties are deemed to have agreed a fee determined by the tariff of fees, where such exists, and otherwise by custom”.

8.56 As mentioned above, the parties did not agree on the amount of the agency fee. Following Article 414 Swiss CO the Panel notes that no “tariffs” applicable have been either argued or submitted to the Panel. It remains therefore to be evaluated whether there is a “custom” that could be applied by the Panel, in accordance with the last sentence of Article 414 Swiss CO.

8.57 The Panel is aware of the statement of Mr Corvino, according to which an agency fee of 10% of the transfer fee seems to be usual in football (cf. witness statement of Mr Corvino, which is Appellant’s exhibit 15, page 3), but the statement has not been corroborated by further objective and convincing evidence. Further, the Appellant made reference to prior transfers in which he was allegedly involved. However, his evidence is weak, because the only evidence provided for this argument (Appellant’s exhibit 19) contains a hand written amount for the commission while all other parts of the document are printed.

8.58 Therefore, based on the information and the evidence submitted, the Panel is not satisfied that an agency fee of 10%, calculated on the entire amount of a transfer fee is customary for agency services as rendered by the Appellant. Accordingly, the two elements foreseen in Article 414 Swiss CO, i.e. tariffs and custom are of no assistance in the present case.

8.59 Under Swiss law, it has been recognized that if no tariff and no custom exist, the judge has to determine the amount on the agency fee on his discretion (cf. Swiss Federal Tribunal, ATF 101 II 109, page 111; Cour de justice Genève, SJ 1984 page 366; AMMANN C., Basler Kommentar, Obligationenrecht I, 5 th edition, Art. 414 OR, N1 and N5). According to the Swiss Federal Tribunal (ATF 101 II 109, page 111), the judge has to consider the case under general aspects when determining the amount:

• The remuneration must correspond with the services rendered, i.e. to be adequate in an objective view.

• Furthermore, the circumstances of the specific case have to be taken into consideration, namely the type and the duration of the mandate, the kind of responsibility and the profession and position of the agent.

8.60 In this context, the Panel considers that in the present case, the Appellant was only asked to “begin negotiations” and these actually have been the only services rendered by the Appellant. As established above, the Appellant did in fact not participate at the later stages of the transfer negotiations.

8.61 Therefore, taking into consideration the rather short duration of the representation, the rather limited involvement of the Appellant in the transfer negotiations, the lack of evidence submitted

to the Panel with regard to potential investments or expenses potentially incurred by the Appellant and finally his quite moderate responsibility as for the completion of the transfer, the Panel is of the view that an agency fee of 3% of the transfer fee paid to the Respondent by the Italian club US Palermo (i.e. 3% of EUR 4,095,000) is objectively adequate to the services rendered and the circumstances of the case. Accordingly, the Respondent has to pay to the Appellant an amount of EUR 122,850.

V. Is the Respondent obliged to pay interest on the amount of the agency fee?

8.62 The Appellant requests interest on the claimed amount of the agency fee in the rate of 5 % p.a. since 1 February 2007 – or alternatively since 4 April 2007 – until the date of effective payment.

8.63 Due to lack of any agreement between the parties and any applicable provision under the FIFA Regulations, the Panel has to look at Swiss law (in particular Articles 102 et seq. Swiss CO) to address the issue of default interest.

8.64 Article 104, par. 1 Swiss CO reads as follows: “A debtor in default on payment of a pecuniary debt must pay default interest of 5% per annum even where a lower rate of interest was stipulated by contract”.

8.65 Consequently, the Appellant’s entitlement for default interest requires that the Respondent was “in default” on payment of the agency fee. The applicable provisions for default are stipulated in Article 102 Swiss CO, which reads as follows: “1 Where an obligation is due, the obligor is in default as soon as he receives a formal reminder from the obligee. Where a deadline for performance of the obligation has been set by agreement or as a result of a duly exercised right of termination reserved by one party, the obligor is automatically in default on expiry of the deadline ”.

8.66 Article 102, par. 2 Swiss CO does not apply in the present case because of lack of a deadline for performance. According to Article 102, par. 1 Swiss CO, the Respondent would have been in default only after receipt of a “formal reminder” from the Appellant. The Appellant has failed to prove that the Respondent received such a reminder before filing the claim with the FIFA Player’s Status Committee. Therefore, the Panel considers the Appellant’s claim as the first “formal reminder” to pay an agency fee. According to the FIFA Decision, the claim was lodged on 10 April 2007. Consequently, the commencement date of interest is the day after the filing of the claim, i.e. 11 April 2007.

8.67 Thus, the Appellant is entitled to interest of 5% p.a. on the amount of EUR 122,850 since 11 April 2007.

9. CONCLUSION

9.1 In summary, the Panel concludes that Respondent has to pay to the Appellant an amount of EUR 122,850, plus 5% p.a. since 11 April 2007 until the date of effective payment.

9.2 The Appellant has requested the Panel to state that he shall not pay any costs at all related to the proceedings in front of the FIFA Players’ Status Committee. The Appellant, however, has not been able to submit that the determination of the costs in the Appealed Decision was not in line with the applicable procedural rules, i.e. the FIFA Rules Governing the Procedures of the Players´ Status Committee and the Dispute Resolution Chamber. Further, the outcome of the present proceedings does not justify, in view of the Panel, that the cost determination of the FIFA DRC should be set aside or amended. Accordingly, this request of Appellant is rejected.

9.3 The above conclusion, finally, makes it unnecessary for the Panel to consider the other requests submitted by the parties. Accordingly, all other prayers for relief are rejected.