Football Agents or Intermediaries

Brazilian media recently announced that FIFA will deregulate football agents activity in 2015. Information allegedly leaked from confidential documentation. However, the novelty is not unexpected.

The low significance of licensed players’ agents in everyday football can be illustrated in numbers. With 246 individuals, Brazil counts one of the highest number of licensed players’ agents of all associations. However, for a country with tens of thousands of professional players all over the world, the amount is marginal. That CBF has no longer offered Players' Agents Regulation-Examinations since 2010, may be seen as another sign for the low usage of such license.

In fact, the activity and regulation of the (often mistakenly called)[1] “FIFA Players’ Agent” have been discussed by different working groups for many years already. In January 2012 finally, a newly composed FIFA Committee for Club Football dealt with the draft regulations and concluded that the direction taken by the working groups should be further pursued.[2] At the beginning of 2013, a Sub-Committee for Club Football was set up, to deal exclusively with the issue of reforming the Players’ Agents Regulations. The Sub-Committee discussed different options, until agreeing on the following three main findings: (1) the current licensing system should be abandoned; (2) a set of minimum standards and requirements must be established in FIFA’s future regulatory framework; (3) a registration system for intermediaries must be set up. The FIFA Congress 2013 approved that a working group shall define the above three points, so that a final draft of the regulations on working with intermediaries could be submitted to the FIFA Executive Committee. It will be the 64th FIFA Congress held on 10 and 11 June 2014 in São Paulo which, based on the approach of the Sub-Committee for Club Football, will decide on an eventual amendment to the FIFA Statutes.[3] The currently abeyant situation is pictured by FIFA’s communiqué dated 31 January 2014, informing that the next Players’ Agents Regulation-Examination will be hold on 3 April 2014, while the same communiqué closes with: “the current licensing system will be abandoned as from summer 2014”. On those grounds, the end of the current players’ agent licensing system is predictable. However, the details have not yet been decided by FIFA’s Congress.

Can association football exist without licensed players’ agents? Art. 4 of the Regulations Governing the Application of the still valid FIFA Statutes states that “players may use the services of agents to negotiate transfers. Only players’ agents in possession of a license may carry out this work.” Art. 4 of the Players’ Agent Regulation further stresses that “the parents, siblings or spouse of the player may also represent him in the negotiation or renegotiation of an employment contract”. Also, “a legally authorized practicing lawyer may represent a player or a club in the negotiation of a transfer or employment contract”. De facto, whoever wants to call himself a players’ agent, can do it. Already today, players are regularly represented by an uncle, cousin, friend of the family, etc. The intentions of these “agents” are often noble, the knowledge about their function however is unfortunately regularly dreadful. 

So what is the difference between a licensed and a non-licensed players’ agent? A legal one: Only the activity of a licensed player’s agent falls under the jurisdiction of FIFA.

What does it change if the agent falls under the jurisdiction of FIFA or not? For violation of FIFA Regulations, sanctions can be imposed on licensed players’ agents, players, clubs or association. If, for instance, a player or club does not pay the licensed players’ agent’s commission, the licensed agent has the possibility to ask FIFA (or in a higher instance, the Court of Arbitration for Sport – CAS) to sanction the player/the club, in order to make them pay. The sanctions may be, in the case of a player: a fine, a match suspension or even a ban on taking part in any football-related activity. In the case of a club: a transfer ban, a points’ deduction or the demotion to a lower division. In contrast, the non-licensed players’ agent will regularly have to claim his right in an ordinary court, which – especially in international issues – proves elusive. Such non-licensed agent is therefore well advised, to work together with a sports law experienced attorney, before entering any transfer negotiation. This has been the case under the prevailing norms and will continue being highly recommended under the new regulations – particularly in cases of international circumstances. The sports lawyer will also be able to reveal to the heretofore-called agent, in future called intermediary, the pros and cons of an eventual arbitration clause. A carefully drafted contract between the intermediary and the player or club, will become even more crucial under the new regulations, since FIFA will set some minimum criteria only. As aforementioned, FIFA still has to determine these criteria, and approve them.

Gastautor Michaël C. Duc ist schweizerischer Rechtsanwalt und Berater für schweizerisches Recht in Curitiba, Brasilien (OAB/PR 00002-C).

[1] Note from FIFA: Players' agents are licensed directly by each association. Therefore, there is no such thing as a FIFA players' agent. 
[2] See Minutes of 62nd FIFA Congress 2012, 24 and 25 May in Budapest. 
[3] See Minutes of 63rd FIFA Congress 2013, 30 and 31 May in Mauritius.
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Maira Gall