CAS Case Digest · Verified against the full award text

CAS 2023/O/10253 — Sportlink For Sport Marketing & Bauza Adrover Consultancy FZ-LLC v. Mr. Modou Barrow

"Barrow" · CAS awarded intermediaries reduced commissions from footballer Barrow, interpreting 'received' literally to condition payment on actual remuneration received from Al-Ahli.

What happened in Barrow

Gambian-Swedish professional footballer Modou Barrow transferred from South Korean club Jeonbuk Hyundai Motors FC to Saudi Arabian club Al-Ahli in January 2023 under a contract worth USD 3,745,680. Two intermediary companies — Saudi-based Sportlink For Sport Marketing and UAE-based Bauza Adrover Consultancy — claimed commissions of USD 475,000 and USD 200,000 respectively under an 'Acknowledgement of Debt Agreement' dated 26 December 2022, which allocated any remuneration exceeding USD 2,500,000 as commission. Barrow disputed signing the Agreement and denied owing the fees. CAS upheld jurisdiction, finding Barrow bound by the Agreement partly because he had voluntarily paid USD 25,000 to Claimant 2 as an 'AGENT-FEE.' On the merits, the Sole Arbitrator rejected the Claimants' argument that full commission fell due on contract signature, instead interpreting the word 'received' literally: commission was only payable on amounts Barrow actually received above USD 2,500,000. Based on assumed receipts of USD 2,997,560 as of the 14 October 2024 hearing, only USD 497,560 exceeded the threshold. The panel awarded Claimant 1 USD 189,072.80 and Claimant 2 USD 54,609.60 (net of the USD 25,000 already paid), both with 5% interest from 1 September 2024. The case matters for its treatment of conditional commission clauses and the evidentiary burden on players alleging non-payment.

Procedural history of CAS 2023/O/10253

No first-instance body was involved; the Claimants filed directly before CAS as an ordinary arbitration on 26 December 2023, invoking the arbitration clause in the Agreement. Barrow failed to file an Answer to the Request for Arbitration within the 20-day deadline. Counsel appeared on 13 February 2024. The President of the CAS Ordinary Arbitration Division appointed Sole Arbitrator Jacob C. Jørgensen on 6 March 2024. The Claimants filed their Statement of Claim on 12 April 2024; Barrow filed his Response on 3 June 2024, raising a jurisdictional objection. Further rounds of submissions followed, including a Reply (15 August 2024) and Rejoinder (24 September 2024). A hearing was held in Lausanne on 14 October 2024. Post-hearing briefs on the interpretation of 'received' were submitted by both parties on 30 October 2024. The evidentiary phase closed on 4 November 2024.

Key holdings in CAS 2023/O/10253

• CAS has jurisdiction where a player's voluntary partial payment of an agent fee demonstrates his belief in being bound by the agreement containing the arbitration clause, applying the principle of venire contra factum proprium.
• Swiss law does not require contracts to take a specific form; a simple electronic signature suffices to bind a party who habitually signs documents digitally, per Art. 11 SCO.
• The word 'received' in a commission clause must be interpreted literally under Art. 18.1 SCO, conditioning the obligation to pay commission on the player's actual receipt of remuneration above the agreed threshold of USD 2,500,000.
• A player's obligation to pay intermediary commission is not conditional on remaining at the club, but is conditional on actually receiving the remuneration from the club; a loan transfer does not extinguish the payment obligation.
• CAS proceedings are adversarial, not inquisitorial; a respondent who fails to produce account statements, salary records or witness evidence to prove non-payment of salary cannot rely on unsubstantiated allegations, per Art. R44.1 of the CAS Code.

How the CAS panel reasoned

The Sole Arbitrator first rejected the time-bar argument, finding the jurisdictional objection timely because it was raised as the first argument in Barrow's initial written submission. On jurisdiction, the Arbitrator applied the principle of venire contra factum proprium: Barrow's USD 25,000 payment labelled 'AGENT-FEE' to a 'FOOTBALL AGENT' was decisive evidence that he believed himself bound by the Agreement, regardless of disputes about the electronic signature's formal validity. On the merits, the Arbitrator applied Art. 18.1 SCO, interpreting the Agreement as a whole. He rejected the Claimants' argument that commission fell due unconditionally on contract signature, finding instead that the word 'received' in the operative clause — 'THE Player has received a total of $3,750,000' — imposed a condition precedent: commission was only payable on amounts actually received above USD 2,500,000. The 'not subject to his stay at Al-Ahli' clause was distinguished from actual payment, referencing Art. 13 of the Al-Ahli Contract permitting loans. The Arbitrator rejected Art. 415 SCO (double representation/forfeiture) because Claimant 1's engagement with Al-Ahli did not harm Barrow — he obtained the minimum USD 2,500,000 offer he required. Art. 417 SCO (excessive fee) was also rejected: Claimant 1's share (12.6%) and Claimant 2's share (5.3%) of total remuneration were not disproportionate. Barrow's failure to produce any financial evidence meant the Arbitrator assumed receipt of USD 2,997,560 as of the hearing date.

Why Barrow matters in CAS jurisprudence

This award establishes that a conditional commission clause using the word 'received' will be interpreted literally under Swiss law, so that an intermediary's right to full commission is tied to the player's actual receipt of remuneration rather than the face value of the employment contract. It also clarifies that a player's voluntary partial payment of an agent fee constitutes conduct sufficient to bind him to the underlying agreement under venire contra factum proprium, even where the formal validity of an electronic signature is disputed. The case further confirms that CAS proceedings are strictly adversarial: a player who fails to produce financial records to prove non-payment cannot rely on bare allegations.

Cases cited in this award

CAS 2016/A/4485 Al Ittihad FC v. Daniel Gonzales Landler CAS 2017/A/5092 Club Hajer FC Al-Hasa v. Arsid Kruja CAS 2017/A/5374 Jaroslaw Kolakowski v. Daniel Quintana Sosa CAS 2014/A/3639 Amar Muralidharan v. Indian National Anti-Doping Agency (NADA) CAS 2013/A/3393 Genoa Cricket and Football Club v. Juan Aisa Blanco CAS 2009/A/1956 Club Tofta Itróttarfelag, B68 v. R.

Frequently asked questions about Barrow

Did Modou Barrow have to pay the full USD 1,250,000 commission to the intermediaries?

No. The Sole Arbitrator interpreted the word 'received' in the Agreement literally, meaning commission was only payable on amounts Barrow actually received above the USD 2,500,000 threshold. As of the 14 October 2024 hearing, Barrow was assumed to have received USD 2,997,560, leaving only USD 497,560 above the threshold. Claimant 1 was awarded 38% of that (USD 189,072.80) and Claimant 2 was awarded 16% minus the USD 25,000 already paid (USD 54,609.60).

How did CAS establish jurisdiction over Barrow when he denied signing the Agreement?

The Sole Arbitrator found that Barrow's voluntary payment of USD 25,000 to Claimant 2 on 8 February 2023, which he himself described in the bank transfer form as an 'AGENT-FEE' paid to a 'FOOTBALL AGENT', was decisive evidence that he believed himself bound by the Agreement. Applying the principle of venire contra factum proprium, the Arbitrator held that Barrow could not simultaneously act as though the Agreement was valid and then deny being bound by its arbitration clause.

Did Claimant 1's dual role as intermediary for both Al-Ahli and Barrow forfeit its right to commission under Art. 415 SCO?

No. The Sole Arbitrator found that Claimant 1's engagement with Al-Ahli did not conflict with Barrow's commercial interests because Barrow obtained exactly what the Agreement required — an employment offer for 2½ seasons worth at least USD 2,500,000. The Arbitrator noted that once the USD 2,500,000 floor was secured, the Claimants were essentially negotiating the size of their own fee, and there was no evidence they acted to Barrow's detriment.

Were the commission fees reduced as excessive under Art. 417 SCO?

No. The Sole Arbitrator found that Claimant 1's fee of USD 475,000 represented 12.6% of Barrow's total Al-Ahli remuneration and Claimant 2's fee of USD 200,000 represented 5.3%, neither of which was excessive or disproportionate. The Arbitrator also noted that no evidence was adduced showing Barrow was coerced or unduly influenced into agreeing the fees, and that Swiss law under Art. 19 SCO affords parties a high degree of contractual freedom.

Topics: Art. 17 RSTP & contract termination at CAS

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