French ruling on the validity of a football agent representation contract concluded by exchange of e-mails

The Court of Cassation in a decision of October 7, 2020 ruled once again on a dispute between a French Ligue 1 football club, AS SAINT ETIENNE, and a football agent. The question remained as to whether a representation contract could have been agreed upon by simple exchanges of e-mails.
This case has already given rise to a first ruling by the Court of Cassation which had been commented in a previous article (to read this article).

The Facts

A sports agent’s company had initiated proceedings against a professional football club to claim judicial payment of a commission for the transfer of a player between two football clubs, the clubs of Saint-Etienne and Dortmund.

The agent believed that he had received a representation contract from the company ASSE to negotiate the transfer of a player. This mandate was disputed by the club.

The representation contract had been given through an exchange of e-mails according to the football agent.

The question raised was : Was the representation contract valid or was this contract null and void ?

The particularity of the representation contact given to a sports agent is that it must be written in accordance with Article L222-17 of the French Sports Code.

This article specifies the forms required for this type of mandate.
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 in performance of which the sports agent carries out the activity of bringing the parties concerned into contact with each other for the conclusion of one of the contracts mentioned in Article L. 222-7 specifies:
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;
2° The party to one of the contracts mentioned in Article L. 222-7 which remunerates the sports agent.
Where, for the conclusion of a contract mentioned 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.
Notwithstanding 1° and the fifth paragraph, the delegating federations may fix, for the remuneration of the sports agent(s), an amount less than 10% of the contract concluded by the parties contacted.
The amount of the sports agent’s remuneration may, by agreement between the sports agent and the parties to the contracts mentioned in Article L. 222-7, be fully or partially paid by the co-contracting party of the sportsman or trainer. The sports agent shall give a receipt of payment to the co-contracting party of the sportsman or trainer.
Any agreement contrary to the present article is deemed null and void and not written.

An initial decision of the Court of Appeal rejected the application of the sports agent company. It ruled that the mandate concluded by exchange of e-mails was null and void:

  • because the mandatory information did not appear in a single document
  • and because an e-mail could not constitute a written document.

The matter was referred to the Court of Cassation. In a first decision, the Court of Cassation ruled on the value of contracts concluded by exchanges of e-mails.

The Court of Cassation overruled the decision of the Court of Appeal on two points.

Firstly, the Court of Cassation ruled that the Court of Appeal had added a condition to Article L222-17 of the Sport Code. The Court of Appeal could not require that the conditions all appear in a single email. Since article L222-17 did not require such a condition, the Court of Appeal could not add a new condition. The decision is therefore overturned on this basis.

Secondly, the Court of Cassation pointed out that written documents could be under an electronic form. It must then comply with certain conditions laid down under articles 1316-1 and 1316-4 of the Civil Code (now Articles 1366 to 1369 of the Civil Code). An e-mail may constitute a written document if the conditions laid down by the Civil Code are met.

The Court of Appeal should have checked whether the email or emails in question complied with the conditions of articles 1316-1 and 1316-4 of the Civil Code.

It should be reminded that an electronic document is qualified as written provided that :

  • the person from whom it emanates can be duly identified
  • and that it is established and maintained under conditions that guarantee its integrity.

The identification of the person from whom it emanates requires an electronic signature which « consists of the use of a reliable identification process guaranteeing its link with the act to which it relates ».
The automatic and unmotivated rejection is therefore censored by the Court of Cassation.

The case was transmitted to the Grenoble Court of Appeal, which, as we indicated in the first commentary, had to determine:

  • whether these exchanges of e-mails fulfilled the conditions laid down by the Civil Code.
  • whether these e-mails should be considered as written or not
    The Grenoble Court of Appeal in a decision of 16 May 2019 ruled that e-mails did not bear an electronic signature. For the Court, these exchanges therefore did not constitute electronic writings. Without a representation contract, the football agent could not claim a commission on the sale.

The football agent lodged a second appeal to the Court of Cassation.

The Court of Cassation overturned the Court of appeal’s decision.

Firstly, the Court of Cassation pointed out that if the contract needed to be signed electronically to be drawn up in electronic form. On this point the Court of Appeal and the Court of Cassation were on the same line.

Secondly, the Court of Cassation ruled, that “if the signature is one of the conditions for the validity of the contract, its absence, even though neither the identity of the author of the e-mail nor the integrity of its content was disputed, could be covered by voluntary performance of the contract with knowledge of the cause of nullity, which constituted a confirmation” within the meaning of article 1338 of the French civil Code (now under article 1182 of the French civil code).

In French contract law, the performance of a contract with knowledge of the cause of nullity can indeed cover a nullity and constitute a confirmation of the contractual engagement

For the Court of Cassation, the mandate given by e-mail was certainly not made in a written form but had been confirmed by the execution of the contract.

The Court of Cassation held that the confirmation of the representation contract by execution was based in particular on the fact that:

  • The contract had been transmitted to the French Football Federation,
  • the contract had been extended
    For the Court of Cassation, there was no written document with an electronic signature, but there was subsequently an execution of the representation contract which constituted a confirmation of the mandate given.

In the view of the Court of Cassation the representation contract could not be declared null and void since it had been confirmed by its performance.

This decision of the Court of Cassation thus puts an end to this lengthy procedure.

As far as the sports agent’s representation contract is concerned, football agents should therefore be careful as to the validity of their contract.

They should require a written or electronic document with an electronic signature to avoid any difficulties. In the absence of a written document in due form, the agent remains dependent on the judge’s interpretation as to whether or not confirmation is possible, which constitutes a significant risk.

By Olivier VIBERT, Lawyer, Paris,
IFL AVOCATS

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