by Thomas Geukes Foppen
Sports Lawyer at Brantjes Advocaten
Significant changes are expected due to the coming into force of the FIFA Regulations on Working with Intermediaries
as per 1 April 2015. As is well known, the FIFA will abandon its licensing system as of that date, opening the market for anyone who is interested in becoming a players’ agent (or ‘intermediary’). FIFA has decided that from now on it is up to the national football associations to further regulate the players’ agents scene. The right of associations to go beyond the minimum requirements of the Regulations on Working with Intermediaries has explicitly been preserved. It is therefore highly likely that further changes will follow in due time.
The main changes
In the Regulations on Working with Intermediaries FIFA has established certain ground rules (or minimum requirements) for the current and future intermediaries, and their role in possible transfers of football players. A quick review of these new Regulations brings to the conclusion that FIFA attaches much value to transparency. To this extent intermediaries must constantly be registered with the national football associations and they must disclose information of all contracts and remunerations in which they have played a role. The intermediaries must furthermore for example declare that they have an ‘impeccable’ reputation and that they do not have a criminal record.
As to the representation contract, it is noteworthy that FIFA has decided not to impose a maximum period for the representation of a player, whereas the former FIFA Players’ Agents Regulations stipulated a maximum contract period of 2 years. The new Regulations furthermore recommend
that the remuneration due to the intermediary will be of 3% of either the transfer sum involved (if he acts between clubs) or 3% of the player’s basic gross income. As far as the FIFA Regulations concern, an intermediary could thus enter into an agreement with a professional football player for the duration of for example 4 years, and on the basis of a remuneration of whatever percentage the parties agree to. Obviously, in this regard mandatory national provisions should be taken into regard.
In spite of all the negativity concerning the involvement of players’ agents with minors, FIFA has not imposed a minimum age for the representation by an intermediary. A mere requirement is that the player’s legal guardian(s) must also sign the representation contract in compliance with national law. FIFA however seems to abolish payments to intermediaries that have negotiated a transfer or an employment contract. Intermediaries will thus have to wait until a player will no longer be considered a minor as defined in point 11 of the Definitions section of the FIFA RSTP.
It is also worth mentioning that FIFA will from now on accept that representation contracts are being entered into by the intermediaries’ company instead of the natural person. Until 1 April 2015 FIFA did not allow for companies to represent players or clubs. Many FIFA and CAS proceedings have dealt with this situation and all of these proceedings resulted in FIFA/CAS not being competent to deal with the case. Such claims of players’ agents were thus turned down merely due to the involvement of a company.
National football associations
As mentioned, it is up to the national football associations to supplement the Regulations on Working with Intermediaries with further stipulations. In most situations, the FIFA Regulations will thus not be exhaustive. At this moment only few national football associations have yet published national regulations on working with intermediaries. It however seems that most associations will indeed implement further national regulations, accompanied by a specific national registration or some sort of quality mark system.
The English FA was the first association to publish its national regulation on working with intermediaries
. Further to this regulation, the English FA published standard contracts and forms that need to be filled in by the intermediaries in the registration process. Registrations costs also apply for intermediaries in England (£ 500, and £ 250 for each subsequent year).
The English FA has decided to supplement the FIFA Regulations. For example, in England a representation contract may not exceed the maximum duration of 2 years. Furthermore, players younger than the age of 16 may not be approached or signed by and intermediary. The English FA however also recommends
a remuneration of 3% for an intermediary. It is thus still up to the parties to decide on a higher percentage.
It also seems that disputes concerning the intermediaries’ activities will be dealt with on a national level. The English FA Regulations for example stipulate that any breach of the regulations will be dealt with by a Regulatory Commission of the association. In my opinion, arbitration (by an expert and experienced committee) still seems a logical solution for disputes between intermediaries and clubs/players.
As also announced by FIFA and certain national football associations, individuals planning to become an intermediary for professional football players and/or clubs are in any event being advised to seek their own legal advice before commencing with the intermediary activities. Existing representation contracts should first of all be reviewed and amended, and the intermediaries should obtain sufficient legal advice regarding both the specific national regulations under which they intend to work and the FIFA Regulations in general. Now that the specific FIFA licensing system has been abandoned and the intermediaries will as such no longer be required to study for a (difficult) exam, the FIFA and the national football associations will expect the intermediaries to arrange for their own knowhow. It thus is the responsibility of the intermediaries themselves to be aware of all regulations involved.
You may therefore ask yourself: are you ready?