Al-Jazira Football Sports Company v. Hugo Garcia Martorell

IV. FACTUAL BACKGROUND

5. Below is a summary of the main relevant facts and allegations based on the Parties’ written submissions and on the content of the Appealed Decision. Additional facts and allegations may be set out, where relevant, in connection with the further legal discussion. While the Panel has considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, it refers in the Award only to the submissions and evidence it considers necessary to explain its reasoning.

6. On 10 July 2014, the Club and the Players’ Agent concluded an agreement by which the Parties agreed on the remuneration payable to the Player’s Agent with respect to the permanent transfer of the football player L. (hereinafter the “Player”) from the Club to Gremio FC (“hereinafter the Agreement”), as follows:

“WHEREAS with the assistance of the AGENT, CLUB and Gremio Football Porto Alegrense (“GREMIO”) entered into a contract in July 2014, for the permanent transfer of the player [L.] from CLUB to GREMIO (“TRANSFER CONTRACT”);

WHEREAS the PARTIES now wish to agree on the remuneration of the AGENT for his services:

Now, therefore, the PARTIES agree as follows:

a) For the AGENT’s assistance in the negotiations between the CLUB and GREMIO, which lead to the signature of the TRANSFER CONTRACT, the CLUB shall pay to the AGENT the total amount of Euro 300,000 (two hundred thousand Euros) as follows:

i. Euro 50,000 (fifty thousand Euros) on the earlier of: (i) the day in which the CLUB receives, from GREMIO, the payment set out in clause 2(b)(i) of the TRANSFER CONTRACT; or (ii) 30 June 2015;

ii. Euro 35,000 (thirty five thousand Euros) on the earlier of: (i) the day in which the CLUB receives, from GREMIO, the payment set out in clause 2(b)(ii) of the TRANSFER CONTRACT; or (ii) 30 March 2016;

iii. Euro 40,000 (forty thousand Euros) on the earlier of: (i) the day in which the CLUB receives, from GREMIO, the payment set out in clause 2(b)(iii) of the TRANSFER CONTRACT; or (ii) 30 August 2016;

iv. Euro 35,000 (thirty five thousand Euros) on the earlier of: (i) the day in which the CLUB receives, from GREMIO, the payment set out in clause 2(b)(iv) of the TRANSFER CONTRACT; or (ii) 30 March 2017;

v. Euro 40,000 (forty thousand Euros) on the earlier of: (i) the day in which the CLUB receives, from GREMIO, the payment set out in clause 2(b)(v) of the TRANSFER CONTRACT; or (ii) 30 August 2017”.

7. In fact, on the same date, the Club, Gremio FC and Player concluded a contract by which they agreed on the permanent transfer of the Player from the Appellant to Gremio FC (hereinafter the “Transfer Contract”), for a transfer fee of EUR 1,900,000.00 (one million nine hundred thousand Euros), net, to be paid as follows:

“Clause 2 (b)

(i) Euro 500,000 on or before 15th of July 2014;

(ii) Euro 350,000 on or before 10th of March 2015;

(iii) Euro 350,000 on or before 10th of August 2015;

(iv) Euro 350,000 on or before 10th of March 2016;

(v) Euro 350,000 on or before 10th of August 2016”.

8. On 27 March 2015, the Players’ Agent lodged a claim with the FIFA PSC against the Club submitting the following requests:

- that the Club be condemned to pay him the amount of EUR 50,000.00 corresponding to the first instalment due under the Agreement, which allegedly fell due on 16 July 2014, i.e., the date on which the Club received payment from Gremio FC under Clause 2 (b)(i) of the Transfer Contract, as it emerged from a payment order of EUR 500,000.00 submitted by the Players’ Agent in support of his claim;

- to order the Club to pay any further instalments that would become payable in the course of the proceedings in accordance with the deadlines established under the Agreement.

9. In its response, the Club rejected the Players’ Agent’s claim on the basis of the following arguments:

- the Club contested FIFA’s competence to hear the relevant dispute since it alleged that the claimant lodged the claim after 1 April 2015, and therefore, he was not a party entitled to seek redress before FIFA’s decision-making bodies according to the applicable FIFA rules;

- irrespective of the above, the Club argued that even if the claimant had standing to lodge the relevant claim according to FIFA rules and regulations, the Players’ Agent was not entitled to receive any payment as long as the Club had not received the instalments due by Gremio FC under the Transfer Agreement.

10. On 7 April 2016, after the investigation phase before the FIFA PSC was closed, the Players’ Agent amended his claim and finally requested payment of EUR 200,000.00, corresponding to the total amount of the agent’s fee under the Agreement, plus 5 % interest per annum as from each due date until effective payment. In this respect, the claimant produced copy of the payment order from Gremio FC to the Club dated 31 March 2016 for an amount of EUR 1,400,000.00, as the balance for the entire transfer fee according to the Transfer Contract.

11. On 25 April 2016, the Club reiterated its previous contentions with respect to the lack of jurisdiction by the FIFA PSC to decide over the present dispute and further argued that the claimant “did not exert the expected effort to receive the agent fee which he is claiming” and therefore, that the Players’ Agent was not entitled to any payment whatsoever. In the alternative, case, the Club requested FIFA to reduce the commission payable to the Players’ Agent, if any.

12. On 27 July 2016, the Single Judge of the FIFA PSC rendered the Appealed Decision by which the Players’ Agent’s claim was upheld and the Club was ordered to pay the amount of EUR 200,000.00, plus interest, as follows:

- 5% p.a. over the amount of EUR 50,000.000 as from 1 July 2015 until the date of effective payment;

- 5% p.a. over the amount of EUR 150,000.00 as from 1 April 2016 until the date of effective payment.

13. Moreover, the FIFA PSC ordered the Club to pay the final costs of the proceedings amounting to CHF 20,000.00, of which CHF 15,000.00 in favour of FIFA and CHF 5,000.00 in favour of the Players’ Agent.

14. The grounds of the Appealed Decision were served by fax to the Parties on 15 November 2016.

VI. SUMMARY OF THE PROCEEDINGS BEFORE THE COURT OF ARBITRATION

FOR SPORT

25. On 6 December 2016, the Club filed an appeal before the Court of Arbitration for Sport (hereinafter the “CAS”) against the Players’ Agent as well as against FIFA with respect to the Appealed Decision, by submitting a statement of appeal in accordance with articles R47 and R48 of the Code of Sports-related Arbitration, Edition 2013 (hereinafter referred to as the “CAS

Code”). In its statement of appeal, the Appellant nominated Mr Olivier Carrard as arbitrator and chose English as the language of the present procedure. In addition, the Appellant requested the CAS Court Office to be granted an extension of the time-limit to file its appeal brief until 26 December 2016.

26. On 15 December 2016, the CAS Court Office invited the Respondents to state whether they consented to the extension requested by the Appellant, also informing that the Respondents’ silence in this regard would be deemed acceptance of the Appellant’s request.

27. By fax letter dated 20 December 2016, FIFA informed the CAS Court Office that, since it was not a party to the present dispute, as it was merely involved as the competent deciding body of the first instance, and since the statement of appeal did not appear to contain any substantial request against it, FIFA cannot be considered as a Respondent in the present proceedings and therefore requested to be excluded from the procedure.

28. On 21 December 2016, the CAS Court Office granted the Appellant a deadline until 26 December 2016 to state whether it maintained FIFA as a Respondent in the present proceedings and, in view of the absence of any objections by the Respondents thereto, confirmed that the Appellant’s time-limit to file its appeal brief was extended until 26 December 2016.

29. On 23 December 2016, the Appellant filed its appeal brief. On the same date, the Appellant informed the CAS Court Office that it did not maintain FIFA as a Respondent in the present proceedings.

30. By fax letter to the Parties on 27 December 2016, the CAS Court Office invited the Respondent to nominate an arbitrator in the procedure at stake within the following 10 days and to file his answer within the time-limit of 20 days.

31. On 9 January 2017, the CAS Court Office informed the Parties that, due to the failure by the Respondent to nominate his arbitrator in the present arbitration proceedings within the prescribed deadline, it would be for the President of the CAS Appeals Arbitration Division to appoint an arbitrator in lieu of the Respondent.

32. By fax letter on 20 January 2017, the CAS Court Office invited the Parties to state whether they preferred a hearing to be held in the present procedure or for the Panel to issue an award based solely on the Parties’ written submissions.

33. On 30 January 2017, the Respondent informed the CAS Court Office that he preferred that an award be rendered on the basis of the Parties’ written submissions.

34. The Appellant failed to submit its position with respect to the possibility that a hearing be held in the present proceedings.

35. On 31 January 2017, the CAS Court Office informed the Parties that the Panel appointed to decide the present dispute was constituted as follows:

President: Mr Fabio Iudica, attorney-at-law in Milan, Italy Arbitrators: Mr Olivier Carrard, attorney-at-law in Geneva, Switzerland Mr Pieter Kalbfleisch, attorney-at-law in The Hague, the Netherlands.

36. By fax letter on 2 March 2017, the CAS Court Office informed the Parties that the Panel had decided to render an award on the basis of the Parties’ written submissions.

37. On the same date, the CAS Court Office forwarded the Order of Procedure to the Parties inviting them to return a signed copy to the CAS Court Office within 9 March 2017.

38. The Order of Procedure was returned to the CAS Court Office duly signed by the Appellant on 8 March 2017.

39. On 10 March 2017, the CAS Court Office granted the Respondent a new deadline until 16 March 2017 to sign and return a copy of the Order of Procedure, which was finally submitted by the Respondent on 10 March 2017.

40. With the signature of the Order of Procedure, the Parties confirmed the jurisdiction of the CAS over the present dispute and that their right to be heard has been respected.

VII. SUBMISSIONS OF THE PARTIES

41. The following outline is a summary of the main positions of the Appellant and the Respondent which the Panel considers relevant for the decision in the present dispute and does not comprise each and every contention put forward by the Parties. The Panel, however, has carefully considered all the submissions made by the Appellant and the Respondent, even if no explicit reference has been made in what follows. The Parties’ written submissions, documentary evidence and the content of the Appealed Decision were all taken into consideration.

The Appellant’s Submissions and Requests for Relief

42. The Appellant made a number of submissions in its statement of appeal and in its appeal brief which can be summarized as follows.

43. Basically, the Appellant does not object to the facts as they were ascertained by the Single Judge of FIFA PSC in the Appealed Decision.

44. In particular, the Club acknowledges having concluded the Agreement with the Respondent on 10 July 2014 and recognizes that the Parties agreed on the amount of EUR 200,000.00 as commission payable to the Player’ Agent with regard to the transfer of the Player from the Club to Gremio FC.

45. Moreover, the Appellant admits that on the same day, a transfer agreement was signed with Gremio FC for the permanent transfer of the Player for a transfer fee of EUR 1,900,000.00.

46. What is contested by the Club, is that the Parties actually failed to enter into a representation contract before the relevant transfer agreement was concluded between the Club and Gremio FC, which is in contrast with the provision of article 19 of the FIFA Players’ Agent Regulations which were applicable at the time of the relevant facts giving rise to the present dispute.

47. In this respect, since the Agreement and the Transfer Contract were concluded on the same day, it results that the Players’ Agent has acted on behalf of the Club without being previously authorized to do so by a representation contract in accordance with the applicable regulations.

48. Such conclusion derives from the wording of the same Agreement which, in its “Preamble”, reads as follows:

“Whereas with the assistance of the AGENT, CLUB and Gremio Football Porto Alegrense entered into a contract in July 2014 for the permanent transfer of the player [L.] from CLUB to Gremio

Whereas the parties now wish to agree on the remuneration of the AGENT for his services

Now, therefore, the parties agree as follows:

For the AGENT’s assistance in the negotiations between the CLUB and GREMIO which lead to the signature of the Transfer Contract, the CLUB shall pay to the AGENT the total amount of Euro 200,000 (two hundred thousand Euros) as follows (…)”.

49. Moreover, the Appellant recalls that article 20 of the same Players’ Agent Regulations stipulates that “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”, which means that the Parties should have signed a representation contract containing the agreement on the Players’ Agent’s commission, before the latter started performing his activity in connection with the negotiation of the Transfer Contract.

50. On the contrary, the Appellant objects that the Parties did not enter into a representation contract before 10 July 2014, i.e. the date in which the Transfer Contract was actually signed between the Club and Gremio FC through the intermediation of the Respondent and therefore, the latter was not authorized to conduct negotiations on behalf on the Club.

51. As a consequence, the Appellant maintains that the Agreement shall be deemed null and void.

52. In its statement of appeal and in its appeal brief, the Appellant submitted the following requests for relief:

“Al Jazira FC asks the Court of Arbitration of Sport:

- That it withdraw the decision of the Single Judge of the Players’ Status Committee, object of the present appeal;

- That it reject all claims made as a result by the Respondents against AL JAZIRA FC;

- That Mr MARTORELL be obliged to reimburse AL JAZIRA FC’s legal expenses of 20,000 €;

- That Mr MARTORELL be obliged to pay all expenses, particularly the Court charges and arbitrators’ fees”.

The Respondent’s Submissions and Requests for Relief

53. The position of the Respondent is set forth in his answer and can be summarized as follows.

54. The Agreement signed between the Parties clearly establishes the Club’s obligation to remunerate the Players’ Agent for the services rendered by the latter in relation to the permanent transfer of the Player from the Club to Gremio FC, in the amount and on the deadlines as set forth under clause 1.

55. The Agreement, as well as the agent’s fee in the amount of EUR 200,000.00, are not contested by the Appellant which neither denies having received the full transfer fee from Gremio FC, according to the Transfer Contract.

56. Since there is a valid and binding contract between the Parties and since the conditions for payment have been met, there is no justification or legal basis for the Appellant to refuse to comply its obligation towards the Respondent.

57. With regard to the Appellants’ arguments that the Agreement would not be valid since it was concluded on the same day when the Transfer Contract was signed, the Respondent objects that they are absolutely specious and groundless, in consideration of the fact that the reason why the Club agreed to pay remuneration to the Players’ Agent is that it benefited from the services rendered by the Respondent concerning the negotiation of the Transfer Contract.

58. As a consequence, the Respondent argues that the appeal brought by the Club is only being used as a pretext for dilatory purposes.

59. The Respondent’s requests for relief were submitted in his answer and are the following:

60. “Due to all the above, the Contract being valid and effective, the current appeal must be rejected, and the decision of the Dispute Resolution Chamber [the Single Judge of the PSC, editor’s note] shall be upheld in full”.