Kolakowski v. Quintana sosa (CAS)
CAS 2017/A/5374
In this case, the representation agreement provided that the agent had exclusive rights to negotiate and represent the player in any transfer activities and explicitly forbade the player from negotiating a contract on his own behalf or through any other agent.
The player went on to sign for Al Ahli FC without using the agent’s services - in fact it was agreed between all parties that the agent had not been involved in the transfer at all. The agent sued for payment of his commission on the total amount of the player’s wages, even though the player had only been employed by the club for just over four months (of a three-year contract).
On appeal, the CAS found that:
As regards the agent’s lack of involvement in the transfer deal, the exclusivity clause was sufficiently clear that he was entitled to the payment of commission regardless of whether he was involved in the negotiation of the deal.
However, despite the exclusivity clause referring to commission being payable on the “total amount of the signed contract”, the panel found that commission was only due in respect of the period of time when the player was employed by the club. In accordance with Art 18(1) of the Swiss Code of Obligations, the panel sought to ascertain the true and common intention of the parties, and considered that the clause was intended to refer to a percentage of the sums actually earned, not what the player might earn.
