By a decision of 11 July 2018 No. 17-10458, the Court of Cassation (french civil superior court) ruled on a dispute on the validity of a contract concluded between a football club and a sports agent which was concluded by exchanging e-mails.
A sports agent company initiated proceedings against a professional football club to claim payment of a commission for the transfer of a player between two football clubs, Saint-Étienne and Dortmund.
The agent considered that he had received a mandate from ASSE to negotiate the transfer of a player. This mandate was challenged by the club.
This mandate had been concluded through email exchanges according to the agent.
It as theerfore necessary for the Court to determine whether the sports agent had received a mandate or whether the alleged mandate was null and void.
The mandate given to a sports agent must be in writing. Article L222-17 of the French Sports Code defines the forms that this type of mandate must take.
Article L221-17 provides that :
« A sports agent may only act on behalf of one of the parties to the contracts mentioned in Article L. 222-7.
The written contract pursuant to which the sports agent carries out the activity of bringing together the parties concerned for the conclusion of one of the contracts referred to in Article L. 222-7 shall specify:
1° The amount of the sports agent’s remuneration, which may not exceed 10% of the amount of the contract concluded by the parties he has put in contact with;
2° The party to one of the contracts mentioned in Article L. 222-7 who pays the sports agent.
Where, for the conclusion of a contract referred to in Article L. 222-7, several sports agents are involved, the total amount of their remuneration may not exceed 10% of the amount of that contract.
By way of derogation from 1° and the fifth paragraph, the delegating federations may fix, for the remuneration of the sports agent(s), an amount of less than 10% of the contract concluded by the parties involved.
The amount of the sports agent’s remuneration may, by agreement between the latter and the parties to the contracts referred to in Article L. 222-7, be paid in whole or in part by the other party to the contract of the athlete or coach. The sports agent shall release the payment to the other party of the athlete or coach.
Any agreement contrary to this article shall be deemed null and void and unwritten. »
The Court of Appeal rejected the sports agent’s request. The Court ruled that the mandate concluded by exchanging e-mails was null and void for two reasons:
- because the mandatory information did not appear in a single document
- and because an e-mail could not constitute a written document.
The Court of Cassation was seized. The interest of this ruling from the Court of Cassation goes beyond the simple sporting framework. This ruling deals with the value of contracts concluded by e-mails exchanges. The court had to determine whether an exchange of e-mails could constitute a written agreement.
The Court of Cassation overruled the decision of the Court of Appeal on two points.
First of all, the Court of Cassation ruled that the Court of Appeal had added a condition to Article L222-17 of the Sports Code. The Court of Appeal couldn’t impose that all conditions had to be included in a single email. Since section L222-17 did not require such a condition, the Court of Appeal could not add a new condition. The decision was therefore overturned on this basis.
Secondly, the Court of Cassation needed to define if an email could constitute a written document within the meaning of the Civil Code and Article L222-17 of the Sports Code?
This provision of the Sports Code requires that a sports agent mandate must be made in writing. Could a sports agent mandate be concluded by an exchange of e-mails?
The Court of Appeal said that it couldn’t. The Court of Appeal ruled that an electronic message could not, by its nature, constitute a written document containing the parties’ respective engagements.
The Court of Cassation overruled the decision of the Court of Appeal. The Court of Cassation considered that the Court of Appeal was too categorical in its refusal to qualify an exchange of mail as a written document.
The Court of Cassation recalled that an electronic document can be under French law considered as a written document. It must comply with certain conditions set out in Articles 1316-1 and 1316-4 of the Civil Code (now Articles 1366 to 1369 of the Civil Code).
The Court of Cassation therefore has replied that an e-mail may constitute a written document if the conditions laid down by the Civil Code were respected.
The Court of Appeal should therefore have checked whether the e-mails in question complied with the conditions of Articles 1316-1 and 1316-4 of the Civil Code.
Under French law an electronic document is qualified as a written document provided that:
– it can be duly identified the person from whom it originates
– and that it is established and maintained under conditions that ensure its integrity.
The identification of the person from whom it originates requires an electronic signature which « consists of the use of a reliable identification process guaranteeing its link with the act to which it is attached« .
The automatic and unmotivated rejection is therefore censored by the Court of Cassation.
The case will have to be heard by a new Court of Appeal. This Court will have to examine:
– if these e-mail exchanges meet the conditions set by the Civil Code.
– whether the emails invoked should be considered as a contract made in writing.
Generally, an email sent by a basic messaging system does not constitute an electronic writing because messaging systems generally do not guarantee the integrity of the message and the identity of the author is rarely guaranteed unless a certified electronic signature system is available.
These questions will have to be concretely analyzed by the Court of Appeal and the answer will depend on the characteristics of the system used by the sports agent and the club to communicate with each other.
By Olivier VIBERT
Lawyer, Attorney , Paris