Sport management agency SEG must pay Internazionale footballer Stefan de Vrij €5.2 million in damages, as decided by the Amsterdam Court of Appeal on appeal.
This is slightly more than the amount awarded by the court to the Dutch international two years ago. SEG had appealed against this decision.
The case revolves around De Vrij's free transfer from Lazio to Internazionale in 2018. Sport management agency SEG was also involved in the negotiations. The Dutch defender believed that SEG was there to represent his interests. However, SEG claimed during a hearing in February 2022 that it was exclusively acting for Inter.
SEG received a commission of €7.5 million from the Italian club for the mediation, as well as an additional fee of €2 million. De Vrij only found out about this much later and did not accept it.
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The court ruled that the agency did indeed mediate for De Vrij as well, and therefore should have been transparent about the agreements. SEG failed to do so, thus breaching its duty of disclosure, according to the court. The court of appeal has now confirmed this view.
SEG argued that there was no conflict of interest and wants to rely on Section 7:418 of the Dutch Civil Code which stipulates that if a principal has a direct or indirect interest in theconclusion of the legal act, he is obliged to inform the principal, unless the content of the legal act is so precisely determined that conflict between both interests is excluded.This as -according to SEG- the agreement between De Vrij and Internazionale was already virtually fixed. The Court does not follow SEG in this argument. The Court argues:
5.12 SEG further took the view that conflict of interest between SEG and De Vrij was ruled out, as the content of the employment contract between De Vrij and Internazionale was already virtually fixed as of 2017. In this regard, SEG pointed out that it had already communicated an indicative proposal to De Vrij
on behalf of Internazionale on 15 December 2017 with the following key elements: an annual net basic salary of 4,000,000.00, a term of five years, and a flexible element consisting of a number of bonuses depending on Internazionale and De V r i j 's performance. Subsequently, on 26 February 2018, De Vrij signed the employment contract with Internazionale in which the core elements correspond almost entirely to those in the indicative proposal. It was only subsequently on 7 March 2018 that the Commission Agreement between Internazionale and SEG was signed. The court is of the opinion that this defence by SEG, that the duty of disclosure would not apply in view of the provisions of Article 7:418, last
sentence of the Civil Code, does not succeed. The indicative proposal of December 2017 did mention some elements of the employment contract of De Vrij and Internazionale, but it was still only a draft version that could be changed afterwards (especially if De Vrij had already known at the time that SEG had
stipulated, or was planning to s t i p u l a t e , a million-dollar commission for himself). It cannot be said that the content of the employment agreement was already so fixed at that time that conflicting interests were ruled out. In early January 2018, the draft documentation was sent by Internazionale to SEG, which
me n t i o n e d a fixed commission of 7,500,000.00 and a flexible contingent commission of 2,000,000.00.
It was only over a month later in February 2018 that the actual employment contract betweenInternazionale and De Vrij was signed. In that intervening period, the e l eme n t s mentioned could have been renegotiated. That this did not happen does not make these agreements sufficiently certain as such that conflicting interests between SEG and De Vrij were ruled out. SEG was therefore obliged to provide
the said disclosures to De V r i j , more specifically prior to the formation of the employment contract. SEG's reliance on the exception of Section 7:418 of the Civil
Code therefore does not apply here.
The court estimated the damages suffered by De Vrij at €4.75 million, but the court of appeal has increased this amount.
A link to the decision (in Dutch) Decision De Vrij SEG (transfer Internazionale)
Hereunder a machine translation of the decision of the Court of Appeal in Amsterdam. And als as a pdf file
Authority Amsterdam Court of Appeal
Date of decision 09-04-2024
Date of publication 09-04-2024
Case number 200.315.260/01
Areas of law Civil law
Special features
Content
indication
Appeal
The dispute between the parties is whether an intermediary
agreement as referred to in section 7:425 of the Civil Code
a r o s e between SEG and De Vrij. The question is also whether
SEG had a duty of disclosure to inform De Vrij of its own
financial interest in the conclusion of the employment contract
between De Vrij and Internazionale and whether SEG breached
that duty of disclosure. The next question is whether there is a
causal link between SEG's breach of the duty of disclosure and
the damage alleged by De Vrij. The court of appeal answered
these questions in the affirmative and estimated De Vrij's
damages by applying the so-called probability damage theory
at over €5 million.
Articles 7:418, 7:425 of the Civil Code
Findings Rechtspraak.nl
AMSTERDAM COURT OF APPEAL
civil and tax law department, Team I
case number: 200.315.260/01
Case number District Court of Amsterdam: C/13/703483 / HA ZA 21-574
judgment of the plural civil chamber of 9 April 2024
regarding
SPORTS ENTERTAINMENT GROUP FOOTBALL B.V.
established in Amsterdam,
appellant in the main appeal,
the respondent in the cross-appeal, lawyer: D.F. Lunsingh
Scheurleer, Amsterdam,
at
Stefan DE VRIJ ,
residing in Milan , Italy, respondent
in the main appeal,
Appellant in the cross-appeal, lawyer: Mr D.L.A. van
Voskuilen, Rotterdam.
The parties are hereinafter referred to as SEG and De Vrij.
1 The case in brief
At issue in this case is whether an intermediation agreement as referred to in Article 7:425 of the Civil Code
(BW) a r o s e between SEG and De Vrij. The question is also whether SEG had a duty of disclosure to inform De
Vrij of its own financial interest in the conclusion of the employment contract between De Vrij and
Internazionale and whether SEG breached that duty of disclosure. The next question is whether there is a causal
link between SEG's breach of the duty of disclosure and the damage alleged by De Vrij. The court answered
these questions in the affirmative and assessed the damages by applying the so-called probability damage
theory.
2 The case on appeal
By writ of summons dated 5 July 2022, SEG appealed against a judgment of the Amsterdam District Court
dated 6 April 2022, delivered under the above case number between De Vrij as plaintiff and SEG as
defendant (hereinafter: the contested judgment).
The parties subsequently submi tted the following documents:
- Statement of grievances in main appeal, also containing a conditional cross-claim under Article 843a of
the Code of Civil Procedure (hereinafter: Rv), with supporting documents;
- statement of reply in main appeal and in the cross-appeal under section 843a Rv, also containing statement
of objections in c r o s s - a p p e a l , with supporting documents;
- statement of reply in the cross-appeal, also containing a statement of defence, also containing a statement
of withdrawal of the cross-appeal under section 843a Rv, with supporting documents.
During the oral hearing on 1 December 2023, the parties had the case explained - both on the b a s i s of
speaking notes that were submitted - SEG by Mr S. Klinkhamer and Mr H.J.Th. Kolstee (both of whom are of
the Ams t e r d am Bar) and De Vrij by Mr Van Voskuilen, referred to above, and Mr W. Janssens, of the
Brus sel s Bar. Both parties submitted further exhibits prior to the hearing. The parties answered questions
put by the Court.
Judgement is further set for today.
On the main appeal, SEG moved that the court of appeal set aside the contested judgment and - in so far
as possible provisionally enforceable - still reject De Vrij's claims, order De Vrij to pay SEG primarily (a)
2,500,000.00 and (b) 2,676.799.97, both amounts to be increased by statutory interest; in the alternative
all that SEG has paid to De Vrij in execution of the contested judgment, increased by statutory interest; in
the further alternative an amount to be determined by the Court of Appeal in good faith, to be increased
by statutory interest; all this with an order that De Vrij pay the costs of the proceedings in both instances
with subsequent costs and interest. In the incident, SEG claimed under section 843a Rv, in so far as
possible provisionally enforceable, to order De Vrij, on pain of a penalty payment, to provide SEG with a
copy of the indemnity given to it by Internazionale within five working days of the date of the judgment
for any tax retrospective assessments (under whatever heading) by the Italian (or any other) tax
authorities, with an order for De Vrij to pay the costs of the proceedings in the incident, plus post-costs
and statutory interest.
By way of principal appeal, De Vrij moved that the contested judgment be set aside and that SEG be ordered -
provisionally enforceable - to pay the costs of the a p p e a l proceedings. As a conditionally incidental appeal,
De Vrij claimed that the contested judgment should be set aside insofar as the claims of De Vrij based on a
violation of Section 7:417 of the Netherlands Civil Code had been rejected and that De Vrij's claims as
submitted in the summons to appear in first instance should as yet be allowed, or at least that the contested
judgment should be upheld also on the basis of Section 7:417 of the Netherlands Civil Code, with an order
that SEG pay the costs of the conditionally incidental appeal.
In the cross-appeal, SEG moved that the cross-appeal by De Vrij be dismissed and that De Vr i j be ordered to
pay the costs of the c r o s s - a p p e a l , as far as possible, plus statutory interest. In addition, SEG withdrew its
conditional cross-appeal pursuant to Section 843a Rv and claimed an order that De Vrij pay the costs of the
proceedings in the cross-appeal.
Both parties offered evidence of their contentions on appeal.
3 Facts
In paragraphs 2.1. to 2.31. of the judgment under appeal, the court established the facts which it took as its
starting point. In ground 1, SEG argued that these facts were incomplete and incorrect.
Insofar as relevant, the court will take this grievance into account in establishing the facts. In summary, and
supplemented where necessary by other facts, the facts amount to the following.
3.1. De Vrij is a professional footballer and is currently under contract with Italian football
club F.C. Internazionale Milano (hereafter Internazionale).
3.2.SEG is the football arm of the umbrella Sports Entertainment Group International B.V., a large
international organisation engaged in sports and entertainment management. SEG operates both
nationally and internationally and has many top footballers and clubs as clients. (Former) directors of SEG
are C.J. Vos (hereafter: Vos) and J.L. Hoogewerf (hereafter: Hoogewerf). Within SEG, [name 1]
(hereinafter: [ name 1] ) i s employed as player agent, among others.
3.3. De Vrij played with Feyenoord's youth team from the age of 10 and made his debut in the F e y e n o o r d
first team in 2009. From De Vrij's first employment contract as a professional footballer wi t h Feyenoord,
for the period from 1 July 2009 to 30 June 2 0 1 2 , he was assisted by Hoogewerf as a player's agent.
Hoogewerf also co-signed De Vrij's employment agreements with Feyenoord in that capacity. The
employment agreement with Feyenoord states, in so far as relevant:
() Article 15:Player agent
1. In the formation of the present agreement, Player's agent Jeroen Hoogewerf (KNVB
licensed) represented Player's interests.
2. In securing the present agreement, Feyenoord did not use a licensed player agent.
3. For the duration of this agreement, the player's agent will receive an annual fee from Feyenoord of
5%, excluding VAT but including the portion of VAT not recoverable by Feyenoord, of the gross annual
base salary including incentive bonus to be received by the player pursuant to this agreement.
Feyenoord and the player's agent shall lay down the arrangements regarding the payment of this fee
in a separate agreement (also known as a commission agreement). ()
3.4.Following this employment agreement with Feyenoord, De Vrij signed two further employment
agreements with Feyenoord. These two employment agreements have a similar provision to Article 15
above, with the difference that for the subsequent employment agreements from 1 July 2011 to 30
June 2014, and from 1 August 2013 to 30 June 2015, a commission of 6% was agreed for Hoogewerf.
Feyenoord always paid this commission directly to Hoogewerf. These two successive employment
contracts between De Vrij and Feyenoord also agreed that De Vrij would receive a percentage of the
resale fee if he was transferred to another professional football club:
() RESALE RATE
If the player is transferred to another professional football organisation in the Netherlands or abroad
within the meaning of Article 1 paragraph 2 during the term of the professional football contract, the
player will receive a gross 10% of the net fee or transfer fee that Feyenoord actually receives from the
other professional football organisation. () Upon request, Feyenoord will provide the player with full
access to the relevant transfer documents. ()
3.5. In July 2014, De Vrij made the switch from Feyenoord to Italian football club S.S. Lazio Roma (hereafter
Lazio). SEG was also involved in this transfer. On 28 July 2014, Hoogewerf sent an e-mail to A.A. Calveri,
director of Lazio (hereinafter: Calveri), in which Hoogewerf commented on De Vrij's behalf that Lazio did
not want to provide De Vrij with the draft documents. In response, Calveri replied on 29 July 2014, this email
states, as relevant:
() I am relly wondering and I do not understand what doubts you can have. We agreed upon all the
terms of the contract and this is the first time in my career that I am working with an agent who wants
to sign a contract by e-mail. ()
3.6. An employment contract was s igned by De Vrij with Lazio on 30 July 2014. The Italian version of the
employment contract states, as relevant:
The English translation reads:
3.7. On 5 April 2017, SEG posted a message on Instagram about De Vrij and a fellow player at Lazio,
Wesley Hoedt. In it, it states:
() Congratulations to SEG clients @stefandevrij and @wesleyhoedt14 on qualifying to the Coppa Italia
final! ()
3.8. From the summer of 2017, SEG held talks with several football clubs about possibly recruiting De Vrij at
the end of the 2017/2018 season, as the employment contract between Lazio and De Vrij expired in the
summer of 2018.
3.9. Several talks took place between SEG and De Vrij in autumn 2017 to discuss possible transfer
options, with De Vrij communicating his wishes to SEG. One of the options discussed was a move to
Internazionale.
3.10. On 15 December 2017, Vos sent a WhatsApp message to De Vrij to reaffirm the outline of
Internazionale's indicative offer, which they previously discussed verbally:
[15/12/2017, 09:33:43] Kees Vos : Hi Stefan I would still app you the overview as discussed from the
week...hereby:
1. Duration: The contract commences on 1 July 2018 and will run until 30 June 2023.
2. Basic annual salary: EUR 4,000,000 net per annum. ()
3.11. On 2 January 2018, Vos r e c e i v e d a draft employment contract between De Vrij and Internazionale
from Internazionale. In this draft, both Internazionale and De Vrij ticked the box that they had been
assisted by a sports agent, but without specifying a name.
3.12. Meanwhile, negotiations with Lazio on a contract extension until mid-2019 were also ongoing, with
SEG also involved. On 8 January 2018, Hoogewerf sent an e-mail to Calveri. In it, it states, as far as
relevant:
() As specifically requested by our client (hereinafter the Play e r ), we herewith provide you with our
counterproposal in response to your offer dated 30 December 2017. ()
Sell on
The Player is to be paid a fee (based on the total Transfer Fee receivable and without any deductions)
by the Club, in case hes transferred to another football club. The Player is entitled to a 10% gross
payment of the Net Transfer Amount. ()
Agency Commission :
EUR 737,500 excluding VAT to be paid in three (3) instalments:
EUR 337,500 excluding VAT;
EUR 200,000 excluding VAT;
EUR 200,000 excluding VAT.
The Club engaged the services of the Intermediary and the Club agrees to remunerate the
Intermediary on behalf of the Club for his services in connection with negotiating an employment
contract signed between the Player and the Club. All sums stated as payable to the Intermediary shall
be rendered to the Intermediary free of any (Italian) withholding tax, income tax, stamp tax, value
added tax or equivalent and charge to the bank account nominated by the Intermediary to the Club in
writing in cleared funds and without any deduction. ()
Calveri then forwarded this e-mail to De Vr i j himself on 10 January 2018, with the accompanying text: This
is the e-mail containing SEG's proposal.
3.13. During the negotiations with Lazio, [name 1] wrote to De Vrij on behalf of SEG in an email dated 14
January 2018:
() In an earlier email, they indicated that we will find a solution, but we know it from Lazio. Must be
rock solid on paper, otherwise it will take months to get your money. ()
So if one detail is missed by Stefan then he loses his claim and we all know what Lazio is after, because
the following sentence reads: In no other case, with exception of written agreements signed by the
player and S.S. Lazio SpA legal representative, the sports company will be obliged to pay any sum
arising from the transfer of the player. That sentence should be taken out anyway. But is already clear
that they are making a reservation not to pay out. already gives me wet feet. ()
And then at Lazio they very cleverly play good cop (Igli) / bad cop (Lotito), so if Stefan starts talking about it
then Igli will brush it off on Stefan , but does not take away from Lazio's intention
(At least, that one is perfectly clear to me). ()
3.14. During the same period (mid-December 2017/early January 2018), SEG presented a n umb e r of
career options to De Vrij, in a presentation it had made for De Vrij. The presentation stated, among
other things, regarding Internazionale:
3.15. On 15 January 2018, Vos sent De Vrij an email regarding SEG's negotiations with Lazio.
In it, it states, as relevant:
() Richard, Jeroen and I are going to work today and tomorrow on a reply email for Lazio and a
watertight version of the documents acceptable to you and us. You know that the chances are very
slim that we will come out of it with Lazio on all the essential points, but we will give it a try. Should it
indeed fail, we will gain time anyway, which will be useful for the decision-making process. ()
3.16. On 26 January 2018, [name 2] (hereinafter: [name 2] ), also working for SEG at the time, sent an
email to De Vrij about the negotiations with Lazio:
() We are trying to get the right deal for you and our good intentions should not be in doubt. By the way,
our lawyer in Italy is struggling to give a watertight opinion. We are still in talks with them but it will be
difficult.()
3.17. On 1 February 2018, SEG gave another presentation to De Vrij on his career options. This
presentation stated, as far as relevant:
3.18. A discussion took place between De Vrij and SEG on 8 February 2018. During this discussion, the
various options were discussed again.
3.19. On 26 February 2018, De Vrij s i gned the employment contract with Internazionale at his h ome , in
the presence of a t least Vos and a few others. On 7 March 2018, Internazionale s i g n e d this
employment contract. The employment contract between them was finally dated 29 March 2018.
De Vrij has signed for a five-year contract with gross base salary for five years of 37,540,000.00
excluding bonuses. The maximum achievable (gross) bonuses are 2,148,000.00 annually. The maximum
gross salary to be achieved including bonuses for five years is therefore 48,280,000.00.
In addition, Internazionale have committed in the employment contract to supplement the gross salary if
necessary so that De Vrij receives a net salary totalling 20,250,000.00 for five years. No resale fee has
been included.
Furthermore, the employment contract between Internazionale and De Vrij states that SEG acted as an
intermediary for Internazionale and not for De Vrij (in the Dutch translation)
De Vrij also initialled this page.
3.20. On 7 March 2018, SEG, represented by Hoogewerf, entered into a commission agreement with
Internazionale (hereinafter: the Commission Agreement) which set out SEG's remuneration for its
work on the formation of the employment contract between De Vrij and Internazionale:
() E. Intermediary hereby declares and guarantees he shall carry out his activity exclusively in the
interest of the Club. The Intermediary does not represent the player. ()
3. As for the activity that the Intermediary shall carry out in the interest of Club, but at the double
condition that, within 10 July 2018:
a.
a) Club and the Player effectively enter into a sport labour contract, such a contract to be till 30 June
2023 for a whole fixed gross salary (any variable amount excluded) equal or lower than 50,000,000.00
(fifty million euros); and
b) the Player is effectively registered at Club without Club paying any transfer amount and/or transfer
fee related to the Player to S.S. Lazio;
then Club shall pay the Intermediary the whole amount of 7,500,000.00 (seven million five hundred
thousand euro), Club Agent Fee, which shall be paid as follows:
a. (a) 2,500,000.00 within 15 July 2018
b) 2,500,000.00 within 15 February 2019
c) 2,500,000.00 within 15 July 2019
The Club Agent Fee is unconditional, irrevocable and non-refundable (even in such case the Player is
temporarily or permanently transferred to another club prior to the above mentioned due dates, the
Intermediary will remain to be entitled to the Club Agent Fees as scheduled above) ()
In addition, under Article 5 of the Commission agreement between SEG and Internazionale, SEG is entitled
to conditional compensation totalling two million euros
( 2,000,000.00) if, by 10 July 2018, De Vrij and Internazionale have signed an employment contract for the
2018-2019 to 2022-2023 seasons for a maximum basic gross salary of fifty million euros ( 50,000,000.00)
and De Vrij has joined Internazionale without Internazionale having to p a y a transfer fee to Lazio. This
amount will be paid in tranches of 200,000.00 for every six months De Vrij is l inked to Internazionale.
3.21. SEG, represented by Hoogewerf, also entered into a cooperation agreement with Internazionale
(hereinafter: the Cooperation Agreement). This stipulates that in the event of a transfer of De Vrij to a
third-party club in which SEG will act exclusively for Internazionale, SEG is entitled to a guaranteed fee
of 7.5% of the transfer fee that will effectively be received by Internazionale.
3.22. By e-mail dated 17 September 2019, De Vrij's tax adviser, M. Tenore of Maisti e Associati, sent a
memorandum regarding so-called fringe benefits. This e-mail states, as relevant:
() please find below a high-level assessment for Mr Stefan De Vrij (hereafter the Client or Player)
regarding his risk exposure from an individual income tax standpoint vis-à-vis the possible claim by
the Italian tax authorities concerning the existence of a fringe benefit.
()
In particular, over the past years, Italian tax authorities have challenged the existence of taxable fringe
benefits received by football players in connection with the services of sport agents, in cases where it was
argued that the cost for the services of the agent was borne by the club whereas the
agent acted in the negotiations with the latter exclusively (or almost exclusively) for the players' benefit.
()
- in some cases (most notably related to the fiscal years 2016 onwards) Italian tax authorities had
challenged that half of the fee incurred by clubs constituted a taxable fringe benefit for the player () in
other cases (most notably related to the fiscal years 2013-2015, where a specific rule dealt with the
matter) the amount of fringe benefit was lower and was determined in the amount of 15% of the fee paid
to the agent ()
- in some cases Italian tax authorities have raised the claim concerning the fringe benefit against the
clubs, which have then recovered from the player the higher taxes paid to the aforementioned
authorities; in other cases Italian tax authorities have raised the claim against the players who in
addition to the taxes were charged with administrative penalties ranging from a minimum of 90% up to
a maximum of 180% of the taxes allegedly unpaid, plus interest;
()
However, based on the information I received, in the case at stake the Agency acted exclusively on behalf of
the Club whereas the Player was not represented by an agent in the occasion of his registration at the C l u b .
We are aware that in a number of cases the Italian tax authorities have challenged similar contractual
settings particularly if the entire commission received by the Agent was borne by the Club.
On the basis of our experience, in these cases the risk of challenge regading the existence of a fringe
benefit is rather material. In this specific case, the risk is exhacerbated by the fact that from internet
searches, it seems that the Player has a long-standing relationship with the Agency as confirmed by the
Agents website https://seginternational.com/football/ as well as by other public sources
https://www.transfermarkt.it/seg-sports-entertainment-group/beraterfirma/berater/586 where the
Player is listed as one of the players which are represented by the Agenc y . Irrespective of whether this
information is accurate it may well be used by the Italian tax authorities to argue that, despite the absence
of a contractual agreement between the Player and the Agent, nonetheless the Agent acted for the benefit
of the Player, rather than the Club
In many cases, Italian tax authorities have indeed used publicly available information (e.g. on the
internet or on newspapers) as indicia supporting the existence of a fringe benefit, most notably to
provide evidence of the fact that the agent, although formally appointed by the Club (as in the case at
stake), was in fact acting for the exclusive benefit of the player due to the fact that based on the
information available on the media the agent appeared a de facto representative of the player.
In such situations, unless the player is able to prove the contrary (i.e. that the agent genuinely acted
exclusively in the benefit of the club), the risk of a challenge by the Italian tax authorities is rather
likely to materialize in case the latter starts a tax audit to examine the position of the player. ()
3.23. By letter dated 25 September 2019, S. Ledure and W. Janssens, lawyers at the Belgian law firm Cresta,
requested SEG, on behalf of De Vrij, to produce the contracts between Internazionale and SEG on the
compensation allegedly received by SEG for the formation of the employment contract between De Vrij
and Internazionale.
3.24. On 2 October 2019, [name 1] and Hoogewerf had a meeting with De Vrij's brother,
N. de Vrij. During this discussion, Hoogewerf shared copies of the Commission Agreement and the
Cooperation Agreement with N. de Vrij.
3.25. On 4 October 2019, N. de Vrij sent an e-mail to De Vrij regarding De Vrij's salary and the
compensation SEG received for this transaction. In doing so, N. de Vrij also made some calculations and
he w r o t e , among other things:
() SEG earned 12% commission on your deal. According to the contract, this is 9,500,000. It is
structured as below with the following explanation:
1. on your salary in 5 years is 12% earned;
2. SEG has also been rewarded for keeping your salary below 50,000,000. ()
3. regardless of the fact that you went to Inter transfer-free you represented a market value. SEG
pegged this at 25,000,000 and earned 12% on this, so a total of 3,000,000;
4. SEG has also earned over your bonuses ()
5. the calculation below comes to a total of 9,550,200 commission . This has with rounded
down in the contract between SEG and Inter to 9,500,000; ()
3.26. De Vrij, through Cresta's lawyers, tried to reach out-of-court agreements with SEG with letters dated
23 December 2019 and 21 February 2020. This was unsuccessful. By letter dated 25 November 2019
and subsequently by letter dated 10 January 2020, SEG disclaimed any liability.
3.27. In December 2020, De Vrij r e c e i v e d an assessment from the Italian tax authorities. This relates to the
commission received by SEG from Lazio for the years 2014 and 2015, in which the Italian tax authorities
attributed 15% of SEG's commission to De Vrij's salary and taxed him for it and imposed an administrative
penalty.
4 First instance
4.1. In the first instance, De Vrij sought a judgment, enforceable on a provisional basis:
I. rule that SEG has failed to comply with the obligations incumbent on SEG as a contractor pur suant
to Section 7:401 of the Netherlands Civil Code and that SEG has acted contrary to the provisions of
Sections 7:417, 7:418 and 7:425 of the Netherlands Civil Code, or in any event rule that SEG has acted
unlawfully vis-à-vis De Vrij, or at least that SEG has been unjustly enriched at De V r i j 's expense; and
b. order SEG to compensate and pay compensation for the damage suffered by De Vrij as a result
of SEG's shortcomings, wrongful acts or unjust enrichment:
- 2018/2019 season: 2,120,000.-- gross;
- 2019/2020 season: 2,585,000.-- gross;
- 2020/2021 season: 2,585,000.-- gross; and
furthermore, in respect of the 2021/2022 and 2022/2023 seasons, order De Vrij to compensate and
pay the damages suffered by De Vrij, to be made out in state and settled in accordance with the law,
plus statutory interest;
II. Primarily, declare that SEG is not entitled to wages vis-à-vis De Vrij in respect of the mediation
of the employment contract between De Vrij and Internazionale for the 2018/2019 to 2022/2023
seasons,
in the alternative, rule that, in determining the damages to be compensated by SEG to De Vrij, account
should be taken of a reasonable wage being 3% of the gross annual salary per season that De Vrij plays
from the 2018/2019 season up to and including the 2022/2023 season in the service of Internazionale at
the agreed gross annual salary of 7,880,000.00 for the 2018/2019 season and 7.415,000.00 gross for
subsequent seasons, or at least a salary calculated in the usual manner o f 7.25% of the gross annual
salary per season that De Vrij plays from the 2018/2019 s e a s o n u p to and including 2022/2023 season
in the service of Internazionale at the agreed gross annual salary of 7 , 8 8 0 ,000.00 gross for the
2018/2019 season and 7,415,000.00 gross for subsequent seasons;
III. Order SEG to indemnify and hold De Vrij harmless Euro for Euro in respect of any surcharges, fines
and/or interest that may be imposed on De Vrij under any denomination by the Italian tax authorities on
account of fringe benefits in respect of SEG's mediation of the employment contract between De Vrij and
Inter Milan signed on 29 March 2018;
IV.order SEG to compensate and pay De Vrij the pecuniary loss suffered by De Vrij
consisting of extrajudicial costs in accordance with BGK being 6,775.00;
V. order SEG to pay the costs of the proceedings.
4.2. SEG submi t ted reasoned defences.
4.3. In the judgment under appeal, the court held, insofar as relevant on appeal, that the agreement
stipulating that SEG was acting for Internazionale and not for De Vrij was a private deed which,
pursuant to section 157(2) Rv, between the parties (De Vrij and Internazionale) constitutes binding
evidence of what it contains. Against a third party such as SEG, the deed provides free evidence. The
deed offers prima facie evidence that SEG acted on behalf of Internazionale. Against this prima facie
evidence, contrary evidence can be provided by De Vrij in the form of proof of an intermediation
agreement between De Vrij and SEG. In that context, the court considered that the documents
submitted show that SEG acted in De Vrij's interest and put this forward in negotiations with the club.
It is clear from the correspondence and presentation that SEG was aware of what De Vrij wanted and
acted accordingly. SEG indicated at the hearing that it was looking after the interests of both parties
and did not dispute De Vrij's claim that it is very unusual at his level to agree a transfer to a club like
Internazionale without a player's agent. The brokerage agreement between De Vrij and SEG was
therefore established in law. The court further considered that this was a situation where SEG was
acting for both De Vrij and the club, as SEG itself acknowledges. The court did not come to the
conclusion that SEG acted too much in Internazionale's interest in the negotiations. SEG did state at
the hearing that negotiations were held with Internazionale on De Vrij's employment contract, but did
not explain what those negotiations entailed. Therefore, it cannot be established that the damage De
Vrij believes he has suffered has arisen because SEG promoted Internazionale's interest (too much)
(no serving of two gentlemen). What has become clear, however, is that SEG had its own interest in
the conclusion of an agreement between De Vrij and Internazionale. Indeed, when the agreement was
concluded, SEG received a (substantial) commission. According to Section 7:418 of the Civil Code,
when there is a conflict of interest, it depends on whether the intermediary fulfilled its duty of
disclosure. SEG should have disclosed to De Vrij that and what kind of commission it would receive if
De Vrij and Internazionale concluded an employment contract. However, SEG did not provide full
disclosure by not mentioning the additional fee of 2,000,000.00 in tranches of 200,000.00. In addition,
SEG also does not state that it informed De Vrij that it would receive a percentage of 7.5% of the
resale price if De Vrij went to another club in the interim and SEG would mediate in the process, as
agreed in the Cooperation Agreement. It follows from the law that SEG would not have breached its
duty of disclosure if the content of the legal act, namely the employment contract between De Vrij
and Internazionale, was so precisely established that conflicts between the interests of De Vrij,
Internazionale and SEG were excluded. The above already shows that the content of the legal act was
not so precisely determined that there could be no conflict of interests. The court concluded that
there was a breach by SEG of the provisions of Section 7:418 of the Civil Code. Because of this breach
of standard, SEG is liable to pay damages to De Vrij. However, it is not possible to find out what
Internazionale was willing to pay to De Vrij if De Vrij knew about the high commission fee to SEG. The
court therefore applied the probability damage doctrine in estimating damages. To this end, it also
calculated what a customary fee for SEG might have been. The court estimated De Vrij's chance
damage at 50% of what SEG received for the deal between De Vrij and Internazionale, amounting to
an amount of 4,750,000.00. Furthermore, the court awarded the compensation/indemnification
claimed by De Vrij for any tax claims by the Italian tax authorities, minus what De Vrij would have had
to pay to the Italian tax authorities if it had been established from the outset that SEG had acted partly
on De Vrij's behalf. Finally, SEG was ordered to pay De Vrij the extrajudicial collection costs of €6,775
and the litigation costs with follow-up costs.
5 Review
5.1. SEG challenges these decisions and the grounds on which they were based with seven grievances
on appeal.
Jurisdiction of Dutch courts
5.2. The first issue is whether the court has jurisdiction to rule in this case, which question, given the
international nature of the case, the court must answer ex officio. The court should test its jurisdiction
in the light of the Brussels I-bis Regulation. The Dutch court has jurisdiction to hear the claim pursuant
to Article 4(1) Brussels I-bis Regulation because SEG (as defendant at the time of service of the
summons in first instance) is domiciled in the Netherlands.
Legal relationship SEG-De Vrij
5.3. With grievance 2, SEG argues that the court erred in considering that a legal relationship existed between
SEG and De Vr i j in (the run-up to) the conclusion of De Vrij's employment contract with Internazionale.
That legal relationship did not exist, and SEG acted exclusively for Internazionale in (the run-up to) the
t r a n s a c t i o n . It is also a misconception that SEG acknowledged that it was acting for both
Internazionale and De Vrij, according to SEG. Primarily, SEG argues that there is no (continuing)
representation or intermediation agreement between SEG and De V r i j . In the employment contract with
Internazionale, De Vrij stated that SEG acted for Internazionale and that no intermediary a c t e d for him.
Based on the other facts and circumstances, De Vrij was not entitled to trust that there was a legal
relationship with SEG. Also on the basis of the applicable regulations, De Vrij was not entitled to trust that
t h e r e was an intermediary agreement with SEG. Moreover, the fact that SEG had acted solely as an
intermediary for the clubs since the employment agreement between De Vrij and Lazio in 2014 had
financial advantages for De V r i j . De Vrij paid nothing for SEG's services to Lazio and Internazionale but
benefited from them. The court wrongly ignores the special (overriding) importance of the regulations
applicable in the football intermediary market. Furthermore, according to SEG (contrary to what the court
considered), it is not highly unusual at De Vrijs level to agree a transfer to a club like Internazionale
without an intermediary. Moreover, the fact that SEG mediated for the club(s) does not automatically
mean that it acted against De Vr i j . To the extent that it is held that a legal relationship existed between
SEG and De Vrij in (the run-up to) the transaction, SEG argues in the alternative that this legal relationship
cannot be qualified as an intermediary relationship but at most as an advisory relationship.
5.4. It is established between the parties that the agreement signed between De Vrij and Internazionale,
which states that SEG acted for Internazionale and not for De V r i j , provides prima facie evidence of the
fact that SEG acted on behalf of Internazionale, against which De Vrij is entitled to produce rebuttal
evidence. Such rebuttal evidence may consist of proof of an intermediation agreement between De Vrij
and SEG. Pursuant to Article 7:425 of the Civil Code, the brokerage agreement is the agreement of
assignment whereby one party, the contractor, undertakes vis-à-vis the other party, the client, to act as an
intermediary, for remuneration, in bringing about one or more agreements between the client and third
parties. The legislative history shows that the element against pay was included in this article for reasons
of legislative technique. Therefore, there may be a n intermediary agreement even if no remuneration
has been agreed.
5.5. The court first notes that there is no written mediation agreement between De Vrij and SEG for
(mediation) work done by SEG in entering into De Vrij's employment contract with Internazionale.
It is also undisputed that De Vrij did not pay SEG for services provided by its
(intermediary) work performed. The employment contract of 29 March 2018 states that Hoogewerf
acts as sports agent for Internazionale on behalf of SEG and that De Vrij did not use the services of a
sports agent. In this regard, SEG explained at the hearing that, after discussing this with De Vrij, it
chose not to assist De Vrij in his transfer to Internazionale for tax reasons. However, the fact that this
is stated in this way in the employment contract does not mean that there is no mediation
agreement between the parties.
5.6. In order to answer the question whether there was a brokerage agreement between the parties, the
conduct of the parties prior to and at the time of De Vrij's transfer to Internazionale and the other facts
and circumstances of the case are also r e l e v a n t . In this regard, the court of appeal considers, first of all,
that it is evident from the employment contracts with Feyenoord submitted that De Vrij was assisted by
Hoogewerf (on behalf of SEG) as player's agent in any event when he entered into his three successive
employment contracts at Feyenoord from 1 July 2009 to 30 June 2015. Furthermore, it can be inferred
from SEG's emails of 8, 14 and 15 January 2018 that SEG was also involved in the negotiations on a
possible extension of his employment contract at Lazio until mid-2019 (see below at para 5.7). It has not
been argued by SEG that De Vrij was assisted by another player's agent during these years. From all these
facts and circumstances, the court of appeal deduces that a long and apparently uninterrupted
cooperative relationship already existed between SEG (as player's agent) and De Vrij (as p l a y e r ) with a
duration of more than 10 years prior to his transfer to Internazionale. Even if there was no formal ongoing
representation or mediation relationship, it is understandable against this background that De Vrij
assumed that SEG also represented him in the negotiations with Internazionale. Partly in view of the
aforementioned facts and circumstances, it would have been up to SEG to explicitly inform De Vrij of a
change or termination of that long-standing cooperation. That did not h a p p e n , at least not sufficiently
clearly. In the opinion of the court of appeal, the only passage on this subject in the written record of the
employment agreement concluded beforehand i s insufficient in the light of the other facts and
circumstances, as established above.
5.7. In its aforementioned judgment, the court also takes into account the way SEG communicated towards
De Vrij and towards third parties in the period preceding the conclusion of the employment contract with
Internazionale at the end of March 2018. It can be inferred from various emails, WhatsApp messages and
presentations by SEG that during that period SEG represented De Vrij in negotiations with Lazio about a
possible extension as well as in negotiations with Internazionale about a possible transfer of De Vrij to
Internazionale. In an email dated 8 January 2018, Hoogewerf sent Calveri a counterproposal for an
extension at Lazio on behalf of De Vrij, referring to De Vrij as his client: As specifically requested by our
client (hereinafter the P l a y e r ), we herewith provide you with our counterproposal (). It is also clear from
the wording of the 14 January 2018 email from [name 1] on behalf of SEG to De Vrij that SEG is standing
up for De Vr i j 's interests in the n e g o t i a t i o n s with Lazio on a possible extension. The same applies to
Vos' 15 January 2018 email to De Vrij regarding SEG's negotiations wi t h Lazio. Subsequently, [name 2]
wrote to De V r i j on behalf of SEG in an email dated 26 January 2018: We are trying to get the right deal
for you (). On 1 February 2018, SEG made another presentation to De Vrij about his career options, which
inc luded a possible move t o Internazionale. Under these circumstances, it is not incomprehensible
that De Vr i j was left with the impression and he was entitled to assume that SEG was representing him in
negotiations about a possible extension at Lazio or a possible move to I n t e r n a z i o n a l e and that they
were continuing their de facto work situation/relationship as it had existed since 2009. If that had been
different, SEG should have informed De Vrij about it in advance. The fact that, based on the applicable
regulations, different/additional conditions are imposed on a mediation agreement does not make this
different and cannot benefit SEG. In view of the entire course of events, the court of appeal is of the
opinion that De Vrij rightly relied on the fact that at the time of the negotiations with Internazionale, there
was a mediation agreement by De
Free with SEG.
5.8. This means that at the time of the negotiations between De Vrij and Internazionale, there was a
conciliation agreement between SEG and De Vrij. Grievance 2 therefore fails.
Breach of duty of disclosure
5.9. With ground 3, SEG disputes the court's opinion that De Vrij did not know what SEG would earn from
the transaction with Internazionale and that SEG acted prejudicially by violating a duty of disclosure in
this respect. SEG argued primarily that it had no legal obligation to disclose to De Vrij about its
earnings from the transaction and/or about (the content of) the cooperation agreement with
Internazionale, because no legal relationship existed between De Vrij and SEG. SEG argues in the
alternative that it told De Vrij, without obligation, what it would earn from the transaction. De Vrij was
aware that SEG would be paid by Internazionale by virtue of its intermediary activities. However,
information about the amount of SEG's remuneration would make no difference to De Vrij, as
Internazionale's payment to SEG had no bearing on the amount of De Vrij's salary. In the further
alternative, SEG argues that the content of the employment contract between De Vrij and
Internazionale was already fixed in December 2017, before the Commission Agreement and the
Cooperation Agreement between SEG and Internazionale were concluded. Those agreements were
signed only after the conclusion of the employment contract between De Vrij and Internazionale. It is
therefore out of the question that SEG's interest could have been contrary to De Vrij's interest. In the
extreme alternative, SEG argues that even if De Vrij cannot remember that SEG communicated
everything, this did not lead to a different outcome for De Vrij. Internazionale did not have a total
amount of 47,000,000.00 or 50,000,000.00 available for the transaction, out of which both De Vrij and
SEG had to be paid on the understanding that the size of the payment to SEG was necessarily at the
expense of the size of the payment to De Vrij (or vice versa), SEG argues.
5.10. Section 7:418 of the Civil Code stipulates that if a principal has a direct or indirect interest in the
conclusion of the legal act, he is obliged to inform the principal, unless the content of the legal act is
so precisely determined that conflict between both interests is excluded. As considered above, SEG
acted as intermediary for De Vrij in the conclusion of De Vrij's employment contract with
Internazionale. This means that SEG had a duty of disclosure with regard to its own financial interest
in the conclusion of the employment contract between De Vrij and Internazionale, more specifically
the amount of the commission fee SEG would receive from Internazionale. In this regard, SEG's
communications in the period prior to 26 February 2018, the date on which De Vrij signed the
employment contract with Internazionale, are decisive. Indeed, until then, De Vrij could have made
other agreements with Internazionale based on the information provided by SEG. However, it cannot
be inferred from the documents and the proceedings at the hearing that De Vrij was informed by SEG
at any time prior to 26 February 2018 about the existence and amount of the fixed commission of
7,500,000.00 and the flexible commission of 2,000,000.00 as laid down in the Commission Agreement
and about the existence and amount of the transfer fee as laid down in the Cooperation Agreement.
Both Vos and [name 1] stated that they explained to De Vrij during a meeting on 8 February 2018 that
SEG would receive a commission of 7,500,000.00 from Internazionale if De Vrij will sign the
employment contract with Internazionale. In the court of appeal's opinion, it can in any case be
inferred from these statements that SEG's assertions boil down to the fact that [name 1] and Vos did
not inform De Vrij about the flexible commission of 2,000,000.00. That SEG did inform De Vrij about
the fixed commission and the transfer fee has been disputed by De Vrij in substantiated terms.
Moreover, no evidence can be found for SEG's contrary assertions in the documents either. In this
regard, SEG referred to an e-mail dated 2 January 2018 in which Vos allegedly forwarded the draft
employment agreement, the Commission Agreement and the Cooperation Agreement to De Vrij on
behalf of SEG. In
These last two agreements mention the commission and transfer fee to be received by SEG. However,
De Vrij stated at the hearing that he did receive this e-mail but that only one attachment was sent
with it, namely the draft employment agreement. This has not been (sufficiently) contradicted by SEG,
nor has it been proven by any evidence showing that the other attachments were sent, so that the
court of appeal assumes that De Vrij did not receive the Commission and Cooperation Agreement
between SEG and Internazionale prior to signing the employment contract with Internazionale (and
was therefore not informed beforehand of the amount of the commission and transfer fee to be
received by SEG). The court therefore concluded that SEG had breached its duty of disclosure as set
out in Section 7:418 of the Civil Code. The fact that the amount of SEG's commission and De Vrij's
salary are not communicating vessels does not, if at all, relieve SEG of its duty of disclosure towards
De Vrij.
5.11. In this connection, SEG offered to provide evidence, inter alia, by hearing Vos on (a) what was told
to De Vrij about all the elements of the commission to be paid by Internazionale to SEG and (b) the
fact that on 22 June 2022, Internazionale's technical director confirmed to De Vrij in a meeting that (i)
between the amount that Internazionale pays De Vrij under the Employment Contract and the
amount it pays SEG under the Commission Agreement, there is no relationship of dependency and (ii)
that Internazionale has given a specific indemnity to De Vrij for after-tax assessments by the Italian
(or any other) tax authorities. However, the offer of proof mentioned under (b) does not relate to the
relevant period, i.e. prior to 26 February 2018, so for that reason this offer of proof is dismissed as
irrelevant. The offer of proof mentioned under (a) is also passed over. SEG has already submitted a
notarial declaration by Vos on this same subject, among others; in paragraph 5.10, it was partly on
that basis that SEG had breached its duty of disclosure. SEG's offer of proof by hearing [name 2] about
De Vrij's knowledge for 2019 of the flexible component of SEG's commission is also passed over as
insufficiently relevant, because it does not, or at least not sufficiently specifically, refer to the
communications by or on behalf of SEG on the period before the employment agreement was
concluded.
5.12. SEG further took the view that conflict of interest between SEG and De Vrij was ruled out, as the
content of the employment contract between De Vrij and Internazionale was already virtually fixed as of
2017. In this regard, SEG pointed out that it had already communicated an indicative proposal to De Vrij
on behalf of Internazionale on 15 December 2017 with the following key elements: an annual net basic
salary of 4,000,000.00, a term of five years, and a flexible element consisting of a number of bonuses
depending on Internazionale and De V r i j 's performance. Subsequently, on 26 February 2018, De Vrij
signed the employment contract with Internazionale in which the core elements correspond almost
entirely to those in the indicative proposal. It was only subsequently on 7 March 2018 that the
Commission Agreement between Internazionale and SEG was signed. The court is of the opinion that this
defence by SEG, that the duty of disclosure would not apply in view of the provisions of Article 7:418, last
sentence of the Civil Code, does not succeed. The indicative proposal of December 2017 did ment ion
some elements of t h e employment contract of De Vrij and Internazionale, but it was still only a draft
version that could be changed afterwards (especially if De Vrij had already known at the time that SEG had
stipulated, or was planning to s t i p u l a t e , a million-dollar commission for himself). It cannot be said that
the content of the employment agreement was already so fixed at that time that conflicting interests
were ruled out. In early January 2018, the draft documentation was sent by Internazionale to SEG, which
me n t i o n e d a fixed commission of 7,500,000.00 and a flexible contingent commission of 2,000,000.00.
It was only over a month later in February 2018 that the actual employment contract between
Internazionale and De Vrij was signed. In that intervening period, the e l eme n t s mentioned could have
been renegotiated. That this did not happen does not make these agreements sufficiently certain as such
that conflicting interests between SEG and De Vrij were ruled out. SEG was therefore obliged to provide
the said disclosures to De V r i j , more specifically prior to the
formation of the employment contract. SEG's reliance on the exception of Section 7:418 of the Civil
Code therefore does not apply here.
5.13. In view of the above, it is concluded that SEG had a duty of disclosure to inform De Vrij of its interest
in the conclusion of the employment contract between De Vrij and Internazionale and that it breached
that duty of disclosure. Ground 3 therefore fails.
Causal link and damages
5.14. By grievance 4, SEG argues that the court erred in finding that De Vrij could have suffered damage due
to the actions of SEG, that such damage should be assessed by estimating the probability of a better
outcome, that the probability of a better outcome is 50%, and that the better outcome should be
assessed at the amount SEG received for the t r a n s a c t i o n , so that SEG should p a y De V r i j
4,750,000.00. According to SEG, it is out of the question that De Vrij suffered damages of any magnitude
due to SEG's actions. To this end, SEG argues that Internazionale would not pay De Vrij more than it does
because: (a) Internazionale did not want to do so in view of the applicable regulations; (b) it would not fit
in with the salaries Internazionale pays other players; and (c) the salary offered to him by Internazionale at
the time of the transaction was the highest attainable at the time at all (given his years of experience,
position on the pitch, his salary history and the highest competitive salary offer at the time of the
t r a n s a c t i o n ). In addition, SEG argues that De Vrij failed to prove the loss of income due to the
disputed shortcoming or breach of standards. According to SEG, there is no causal link between the
claimed lost income and the (disputed) default/standard infringement. Internazionale did not have one
total amount left over for the transaction from which both De Vrij and SEG had to be p a i d , so SEG's
commission was not at the expense of De Vrijs's salary (or vice versa). Finally, SEG argues that the court
made an incorrect and incomprehensible estimate of damages.
5.15. In the foregoing, the court held that there was a breach of contract/norm by SEG, namely breach of the
duty of disclosure. At issue is the question whether and to what extent De Vr i j suffered damage in the
form of missed earnings as a result. The employment contract between De Vrij and Internazionale shows
that for the years 2018/2019, 2019/2020, 2020/2021, 2021/2022 and 2022/2023, the parties a g r e e d a
total salary of 37,540,000.00 for De Vrij. However, the Commission Agreement between SEG and
Internazionale made the payment of the conditional compensation of 2,000,000.00 conditional on the
conclusion of an employment contract between Internazionale and De Vrij in which a maximum basic
gross salary of 50,000,000.00 was agreed. It cannot be determined with certainty whether Internazionale
would actually have paid a salary of 5 0 , 000,000.00 to De V r i j , had De Vrij been aware of the high
commission that SEG would receive from Internazionale at the time of his salary negotiations with
Internazionale. However, it is not inconceivable that if De Vrij had known at the time of those negotiations
about the level of commission that would be pa id to SEG, the payments from Internazionale to both De
Vrij and SEG would have b e e n different (distributed). Although De Vrij's exact damages cannot be
precisely determined, the court does consider it plausible that there is a causal link between the breach of
the duty of disclosure and some missed income of De V r i j . Pursuant to established case law of the
Supreme Court, the probability damage doctrine is appropriate to provide a solution for this type of
situation in which there is uncertainty as to whether an intrinsic shortcoming or wrongful act has
c a u s e d damage, and in which that uncertainty finds its ground in the circumstance that it cannot be
determined whether and to what extent, in the hypothetical situation that the shortcoming or wrongful
act would have been omi t t e d , the probability of success would also have materialised in reality (HR 21
December 2012, ECLI:NL:HR:2012:BX7491; HR 26 March 2021, ECLI:NL:HR:2021:461).
5.16. The court calculates De Vrij's loss of chance as follows. It is established between the parties that, on
the basis of the employment contract with De Vrij and the subsequently concluded Commission
Agreement with
SEG paid a total of 47,040,000.00. This total consists of 37,540,000.00 in De Vrij's salary and
9,500,000.00 in SEG's commission; the parties agree that the bonus is excluded. De Vrij claims that of
the excess above his salary ( 9,500,000.00), at least part could have been the subject of further
negotiations between him and Internazionale, had he known (on the basis of information wrongfully
withheld from him by SEG) that such room existed. The part attributable to SEG as a reasonable
commission should also be estimated and deducted from the amount of 9,500,000.00. It is attributable
to SEG that De Vrij did not have that information, so that the failure to start the
(re)negotiations between De Vrij and Internazionale should be at t r ibuted to the shortcoming on the part
of SEG. In those negotiations, De Vrij could have argued that the amount claimed by SEG was considerably
higher than the commission SEG could reasonably expect on the basis of, on the one hand, De Vrij's
previous employment contracts (at Feijenoord, in which SEG had acted for him), as well as Lazio's offer (in
which 8.5% commission was reserved for SEG). SEG argued that it would have wanted to charge 12% in
relation to the deal at Internazionale, but it did not demonstrate in any way that De Vrij would have
a g r e e d t o this, n o r that there were good grounds for such a higher percentage than had previously
been realised (at Feijenoord), or offered (by Lazio). The court of appeal considers it not implausible that De
Vrij (who was after all satisfied with the transfer to Internazionale realised with the help of SEG) would
have agreed to a percentage of 10% in negotiations with SEG. This commission, estimated at 10%, would
then be the commission reasonably due to SEG, calculated on the basis of the total amount that
Internazionale actually paid (in salary and commission: the bonus, as c o n s i d e r e d above, is
e x c l u d e d ). If salary (100%) and commission (10% thereon) add up to 47,040,000.00, the 10%
reasonable commission for SEG amounts to 10/110th part, i.e. 4,276,363.64. On that basis, the court of
appeal considers it likely that De Vrij, had he known in time about the commission agreement between
SEG and Internazionale that had not been communicated to him, would have been able to negotiate a
higher remuneration (in the form of salary or a one-off signing fee) in the amount of the remaining amount
of the 9,500,000.00, being 5,223,636.36 gross, after deduction of the reasonable commission.
5.17. In view of the foregoing, ground 4 fails. Based on the incidental appeal, the court of appeal will award
the damages claimed by De Vrij up to a gross amount of 5,223,636.36. As this compensation is already
awarded on the basis of De Vr i j 's primary bases, the court of appeal no longer gets around to discussing
ground 6 (which is directed against the subsidiary bases of De Vrij's claims).
Grievance 5: tax indemnification
5.18. In ground 5, SEG argues that the court erred in ruling that SEG had breached a duty of care towards De
Vrij as an intermediary and should indemnify De Vrij for any retrospective levies from the Italian tax
authorities on account of fringe benefits De Vrij allegedly enjoyed. According to SEG, there is no basis for
providing such a tax indemnification, as De V r i j i s not at risk under Italian tax law. To this end, it
referred to a memorandum dated 4 October 2022 by G. Tremonti, an Italian tax expert. Moreover,
according to SEG, following the indemnity received as yet from Internazionale, De Vrij no longer has any
interest in this claimed indemnity.
5.19. It is established that in December 2020, De Vrij actually received an assessment from the Italian tax
authorities regarding the commission received by SEG from Lazio for the years 2014 and 2015. That
there were therefore no (any) tax risks for De Vrij, as SEG argues, cannot be assumed under these
circumstances. SEG's defence that De Vrij had no basis for the claimed
indemnification/indemnification therefore fails. Nor does the court see sufficient reason to conclude
that De Vrij has no interest in the claimed tax indemnification on the part of SEG. It can be
established that on 8 September 2021 Internazionale gave De Vrij an indemnity for any tax
assessments by the Italian tax authorities. It cannot be ruled out that this indemnification by
Internazionale differs in substance from an (as the Court of Appeal understands: additional)
indemnification by SEG and that with it the same
(tax) risks are covered. Although the court considers the chance that Internationale's indemnity does
not provide sufficient cover for any future tax damage to be suffered by De Vrij to be very limited, this
circumstance cannot justify the conclusion that De Vrij no longer has any interest in the (additional)
indemnity claimed by him. Moreover, it follows from SEG's defence that SEG itself has no interest in
opposing the tax indemnification claimed by De Vrij. De Vrij, even if mainly theoretical, still has a
sufficient interest in his claim. Ground 5 therefore fails.
Conditional incidental claim under section 843a Rv
5.20. In its statement of objections, SEG sought an order under Section 843a Rv to order De Vrij, on pain of a
penalty, to provide SEG, within five working days of the date of the decision, with a copy of the indemnity
given to it by Internazionale for any tax retrospective assessments by the Italian (or any other) tax
authorities. However, in its statement of reply in the cross-appeal, the SEG withdrew this claim, so that it
does not need further discussion. SEG did claim costs from De Vrij in this respect, but the court of appeal
sees insufficient grounds for this.
Statutory interest
5.21. By grievance 7, SEG argues (inter a l i a ) that the court erred in ordering SEG to pay De Vrij damages of
4,750,000.00, extrajudicial collection costs of 6,775.00, litigation costs of 9,773.71 and post-judgment
costs of 163.00, all amounts plus statutory interest with effect from 8 March 2018. SEG disputes this
effective date of 8 March 2018, i.e. the day after SEG signed the contracts with Internazionale
s t i p u l a t i n g the commission fee for SEG. According to SEG, in the court's incorrect approach, De Vrij is
entitled to statutory interest on alleged future lost earnings and there is no basis in law for this. The court
considers that De Vrij is entitled to damages of 5,223,636.36 gross (see paragraphs 5.16 and 5.17).
Statutory interest is d u e on this amount. For the determination of the effective date of the statutory
interest, it is important that the present case concerns a claim for compensation of future income loss.
According to established case law (see HR 11 July 2003, ECLI:NL:HR:2003:AF7884), if the court estimates
the damage at a capitalised lump-sum amount, this damage must be deemed to have been suffered on
the reference date taken as the starting point for capitalisation. The court is of the opinion that, in the
present case, the reference date to be t a k e n as the capitalisation date is the date of the judgment and
not the date on which SEG signed the contracts with Internazionale. Legal interest is therefore due on the
capitalised amount of 5,223,636.36 gross from 6 April 2022.
Conditional cross-appeal
5.22. The foregoing leads the court of appeal to the conclusion that ground 7 succeeds. This means that the
condition of De Vrij's cross-appeal on a conditional basis has been met, so that the court of appeal will
assess the claims made on the cross-appeal. In the cross-appeal De Vrij claimed that the contested
judgment should be set aside insofar as the claims of De Vrij based on violation of Section 7:417 of the
Dutch Civil Code have been rejected and that the claims of De Vrij as instituted in the summons to appear
in first instance should still be allowed, or at least that the contested judgment should also be set aside on
the basis of Section 7:417 of the Dutch Civil Code.
5.23. With regard to the claimed declaratory judgment that SEG - in brief - acted contrary to Sections
7:417 and 7:418 of the BW, the court of appeal considers the following. On the basis of the
documents, it cannot be established that SEG acted on behalf of both Internazionale and De Vrij as
referred to in Section 7:417 (1) of the BW. As considered above in paragraphs 5.10-5.13, SEG did act
contrary to Section 7:418 of the DCC. This also leads the court of appeal to the conclusion that SEG
acted towards De Vrij
failed to comply with the obligations incumbent on SEG as a contractor under Section 7:401 of the Civil
Code. These claimed declarations of law will be granted to that extent.
The claimed declaratory judgment that SEG has acted unlawfully vis-à-vis De Vrij, or at least SEG has
been unjustly enriched at De Vrij's expense, is dismissed for lack of independent interest, as a
culpable breach by SEG as referred to in Section 6:74 of the Dutch Civil Code has already been
established (see paragraphs 5.10-5.13). The compensation claimed by De Vrij in the amount of
2,120,000.00 (season 2018/2019, 2,585,000.00 (season 2019/2020) and 2,585,000.00 (season
2020/2021) and in respect of the seasons 2021/2022 and 2022/2023 to be made up by state, is
dismissed. The court of appeal has already set De Vrij's damages with application of the probability
damage theory at an amount of 5,223,636.36 gross (see paragraphs 5.16 and 5.17).
The court of appeal also sees no reason to grant the claimed declarations of law that SEG is primarily not
entitled to wages in respect of the mediation of the employment contract between De V r i j and
Internazionale for the 2018/2019 to May 2022/2023 seasons. This primarily claimed declaratory judgment
has already been granted in the contested judgment at first instance, so that the alternatively claimed
declaratory judgment (that a reasonable wage of 3% of De Vrij's gross annual salary per season must be
taken into account in determining the damage to be compensated by SEG to De Vrij) can remain
uncontested.
The claimed indemnification and/or compensation in respect of all additional levies, penalties and/or
interest has already been awarded by the subdistrict court in the judgment under appeal. The judgment
under appeal was not set aside on this point , so there is no reason to (re)grant this claim on appeal.
The same applies to the extrajudicial costs claimed and the procedural costs of the proceedings at first
instance and follow-up costs.
Final sum and costs
5.24. The parties have not offered evidence of sufficiently concrete facts that, if proven, could lead to a
different verdict.
5.25. In conclusion, ground 7 in the main appeal succeeds and the ground in (conditional) incidental
appeal succeeds. The contested judgment will be set aside and judgment will be given as in the
operative part below. SEG, as the prevailing party, will be ordered to pay the costs of the appeal
proceedings, both in the main appeal and in the cross-appeal.
6 Decision
The court:
on principal and cross-appeal:
Sets aside the judgment under appeal in so far as SEG was ordered to pay De Vrij the sum of 4,750,000.00, plus
statutory interest with effect from 8 March 2018 until the date of full payment;
and to that extent re-adjudicated:
orders SEG to pay De Vrij the sum of 5,223,636.36 (five million two hundred and twenty-three thousand six
hundred and thirty-six euros and thirty-six cents) gross, plus the statutory interest referred to in Section
6:119 of the Civil Code on the amount awarded with effect from 6 April 2022 until the day of payment in full;
Declares that SEG has failed to fulfil the obligations incumbent on SEG as a contractor under Section 7:401 of
the Netherlands Civil Code and that SEG has acted in breach of the provisions of Section 7:418 of the
Netherlands Civil Code;
order SEG to pay the costs of the main appeal and the conditional incidental appeal, fixed to date at EUR
1,780.00 for out-of-pocket expenses and EUR 12,118.00 for costs of legal assistance to De Vrij,
declares these orders provisionally enforceable;
Dismisses the more or otherwise claimed.
This judgment was delivered by Messrs I.A. van der Burg, H.T. van der Meer and R.L. de Graaff and pronounced
in public on 9 April 2024
