Player’s former agents secretly negotiated with club for extra money.
An international goalkeeper yesterday saved himself commission fees after senior judges ruled that his former agents had not been playing the game by making a secret deal with his club.
Mr Berry, of Imageview Management, negotiated a two-year contract, and Mr Jack agreed to pay 10% of his salary as commission.
But Mr Berry also negotiated with the football club for a £3,000 fee for getting Mr Jack a work permit and did not tell the footballer, said Lord Justice Jacob at the Court of Appeal.
When Mr Jack heard about it and was told it was “none of your business”, he stopped paying the 10%.
Imageview sued Mr Jack for the unpaid fees of £3,200 and the footballer claimed back the agency commission he had paid for a year, plus the £3,000 for the work permit.
Lord Justice Jacob said: “What if a footballer’s agent, in negotiating for his client, makes a secret deal with the club for himself on the side?”
He said a High Court judge had ruled Imageview in negotiating a deal for itself had a clear conflict of interest.
The appeal judge said: “The law imposes high standards on agents. Footballers’ agents are not exempt from these.
“If you undertake to act for a man, you must act 100% body and soul for him. You must act as if you were him. You must not allow your own interest to get in the way without telling him.”
The appeal judge, together with Lord Justice Mummery and Lord Justice Dyson, threw out the Imageview appeal and ruled any commission Mr Jack had paid was forfeit and the £3,000 work permit fee was recoverable.
Whistle blown on football agents’ secret deals.
By: Damien Henderson (The Herald).
Football agents who make secret side deals with clubs without the players' knowledge risk losing all their profits and any agency fees paid, London's Court of Appeal ruled yesterday.
In a decision that will have implications for players including the best paid in the SFA and Premier League, former Dundee goalkeeper Kelvin Jack, a Trinidad and Tobago internationalist, won his claim for compensation from his former agent, Mike Berry.
Jack, 32, who also played for Reading and Gillingham, was a relatively low earner. However, the principle established by yesterday's ruling applies to Premier League stars and the agency fees paid on their multimillion pound contracts.
Lord Justice Jacob, sitting with Lord Justice Mummery and Lord Justice Dyson, backed the goalkeeper in his claim to recover all fees paid to Mike Berry's company Imageview Management, as well as the £3000 Mr Berry pocketed from Dundee without telling his client.
The ruling could potentially impact on the workings of other agents, although sources insisted to The Herald that Mr Berry's practices were a "one-off" that did not reflect on the rest of the profession.
Upholding earlier rulings of a Recorder and a High Court judge, Lord Justice Jacob said that Mr Berry had wrongly negotiated a "secret" £3000 fee for obtaining a work permit for Jack, who represented Trinidad and Tobago in the 2006 World Cup, to enable him to sign for Dundee in summer 2004.
He ordered him to pay Jack the £3000 plus all agency fees paid under his contract, which amounted to 10% of his salary while he was paying his agent.
The judge rejected a claim by Imageview for £3203 worth of agency fees it claimed it was entitled to after Jack learned of the secret deal and stopped paying.
The judge said: "What if a footballer's agent, in negotiating for his client, makes a secret deal with the club for himself on the side? That is what this case is about. It would not have happened if Mr Mike Berry had been open.
"If he had told his client...that when he was going to negotiate for Mr Jack to sign for Dundee, he was also going to make a deal with the club for himself about getting a work permit for Mr Jack, then, if Mr Jack had had no objection, there would have been no problem. Instead of doing that Mr Berry made a secret deal."
He said that the key question in the case was whether this constituted a "breach of duty" by the agent to his client.
He continued: "Unless there was a breach of duty, other questions do not arise and Mr Jack is liable for the unpaid balance of the fees."
Was the undisclosed side deal "none of Mr Jack's business"? Mr Recorder Walker, upheld by Mr Justice Underhill, held that it was indeed Mr Jack's business: it was not Mr Berry/Imageview's private and separate arrangement.
"The basis for such a finding was that Imageview in negotiating a deal for itself had a clear conflict of interest. Put shortly, it is possible that the more it got for itself, the less there would or could be for Mr Jack.
"Moreover, it gave Imageview an interest in Mr Jack signing for Dundee as opposed to some other club where no side deal for Imageview was possible. There is no answer to this.
"If you undertake to act for a man you must act 100%, body and soul, for him. You must act as if you were him. You must not allow your own interest to get in the way without telling him. An undisclosed but realistic possibility of a conflict of interest is a breach of your duty of good faith to your client."
Reacting to yesterday's ruling, one Scottish football agent, who did not want to be named, said: "Mike Berry has left himself wide open by not letting the player in on the deal he has made and he's been penalised for that.
"I don't think this will have wider implications for the industry because I don't think other agents conduct their business in this way."