Editor’s note:Pedro is an intern at the Asser Institute and currently studying the Erasmus Mundus Master Degree in Sports Ethics and Integrity (KU Leuven et al.) He was one of the participants of the first edition of the Summer Programme on Sports Governance and Human Rights.

In early September, the first Summer Programme on the Governance of Sport and Human Rights took place at the Asser Institute. During one week, various experts in the field presented different lectures to a very diverse group of participants with a wide range of professional backgrounds. Being a participant myself, I would like to reflect on this one-week course and share what I learned.

Day I – Sport and human rights, more than a current debate

Over the last few years, social media, newspapers and academia have increasingly paid attention to the relationship between sport and human rights. On this first day of the course, we had the opportunity to understand the roots of this debate and its importance. Stephen Cockburn, Head of Economic and Social Justice at Amnesty International and also lead on sport and human rights, took us back to the 1978 FIFA World Cup in Argentina, when various civil society organisations (CSOs) were already advocating respect for human rights in the context of the tournament or even calling for a boycott of it. Stephen underlined the critical role that CSOs have played in pushing for greater respect for human rights in sport and how forty years after the World Cup in Argentina, the same situations and demands are often replicated. In this context, William Rook, Deputy Chief Executive and Chief Operational Officer of the Centre for Sport and Human Rights (CSHR) introduced the work of his organisation. Reviewing the background of the organisation’s establishment, as well as its vision for and mission in the sports industry, we were able to understand the importance of this type of institution to exert pressure and serve as a convening point between the different stakeholders. Finally, Dr Jörg Krieger closed the day with an overview of the history of the human rights movement in sport. Dr Krieger explained to us the fundamental role that human rights have played since the birth of sport and the Olympic movement and how understanding this evolution can help us to overcome the challenges we face today. Because as Winston Churchill wrote, “those that fail to learn from history are doomed to repeat it”.

At the end of this first day, all participants, speakers, and colleagues of the Asser Institute were able to connect more during an opening reception in a café in The Hague.

Day II – Integrating human rights in the governance of sport

How are sports organisations integrating human rights considerations and commitments into their governance? This was the central question of the second day of the course, where Rachel Davis, Co-founder and Vice President of Shift, brilliantly introduced the role that the UN Guiding Principles on Business and Human Rights (UNGPs) are playing in the development of human rights policies in sports organisations and especially in the organisation of sports events; aspects that were later developed by Alison Biscoe, from CSHR, who explained the process of creating a human rights policy and the challenges that come with it. Before that,  David Grevemberg, Chief Innovation and Partnerships Officer of the CSHR, introduced the ecosystem of sport, providing an overview of the different types of actors involved and interacting with each other. These talks helped us to understand the complexity behind sport governance and the obstacles that this ecosystem itself poses to the protection of human rights. Finally, both Gijs de Jong, Secretary-General of the Royal Netherlands Football Association (KNVB) and Dr Andreas Graf, Head of Human Rights & Anti-Discrimination at FIFA, explained how both institutions are working to address the human rights risks and impacts associated with their activities. De Jong explained how the KNVB focuses on advocacy and social media campaigns to raise awareness and Graf outlined how FIFA has focused its efforts on the development of a human rights policy and the implementation of human rights due diligence for the bidding, preparation and hosting of FIFA tournaments.

This day served to outline that although some organisations such as FIFA or the KNVB are taking action with varying degrees of success, there is still a long way ahead for most sport governing bodies to adequately address their human rights impacts and live up to their responsibility to respect human rights. The adoption of human rights policies is only the first step and subsequent steps are necessary for the implementation of these policies and to ensure that these policies are fully integrated by the members of these organisations, whether at an international or national level.

Day III – Human rights, Mega-Sporting Events (MSEs) and Qatar 2022

If we talk about human rights and sport, the first thing that comes to mind for many people is the FIFA World Cup Qatar 2022 and the situation of migrant workers building the infrastructure for the tournament. Therefore, the Qatar World Cup served as a case study on day three, which was dedicated to mega-sporting events.  An introduction to MSEs, their organisation and their human rights impacts was given by Dr Daniela Heerdt, which served as a basis for the following presentation by Natasha da Silva, Senior Policy Executive at the Australian Human Rights Commission. She presented the work that the Commission did for the human rights risk assessment for the 2023 Women’s World Cup. The result was a complex document that illustrates the different risks involved in organising this event. The afternoon’s case study on the Qatar 2022 World Cup included presentations by Mahmoud Qutub (Supreme Committee for Delivery and Legacy), Ambet Yuson (BWI), Mustafa Qadri (Equidem) and Dr Andreas Graf (FIFA). It was an enriching experience to listen in the same room the differing points of view and the approaches that each one uses to minimise (somehow) the negative impacts of the World Cup organisation.

Day IV – Athletes’ rights at FIFPro

After three days on the premises of the Asser Institute, we headed to the city of Hoofddorp, where FIFPro’s headquarters are located. There, different representatives of FIFPro presented the work of the organisation, how it is structured and functioning, as well as the different projects they have been involved in to advance the rights of professional football players. The topics varied, but always with athletes’ rights as the red thread. Andrea Florence, director of the Sports and Rights Alliance, also presented on the issue of child athletes and abuse in the sporting context. In my view, the most interesting part of the day came in the afternoon. Alexandra Gomez-Bruinewoud presented several cases that FIFPro has worked on or is currently working on. Afterwards, the participants were divided into groups and were asked to work on these cases and propose solutions to vindicate the rights of the players concerned. Thanks to this exercise, we realised how difficult it is to defend athletes’ rights and the complex institutional constraints and legal intricacies that must be navigated to uphold their rights. The day ended with a reception in FIFPro’s lounge, where we could chat with members of the organisation and share experiences and contacts.

Day V – Access to remedy

The three pillars of the UNGPs are “respect, protect and remedy”. For four days, we paid attention to the first two concepts, so the last day of the programme was logically focused on the remedy pillar. Both Dr Daniela Heerdt and Dr Antoine Duval introduced and defined the concept of remedy, as well as the deficiencies of the current sport system in order to address sport-related human rights harms. Including the ineffective role of the Court of Arbitration for Sports (CAS) in remedying sport-related human rights harms. To illustrate this, Patrick Bracher, director of Norton Rose Fulbright South Africa, illustrated the problems and difficulties involved in defending the rights of South African athlete Caster Semenya at the CAS and the Swiss Federal Tribunal. Finally, Florian Yelin, Head of Policy and Research at the World Player Association, presented the work that World Players has been doing and its proposal for an arbitration system outside the CAS. This mechanism attempts to alleviate the deficits of the CAS and serve as an alternative. However, it is still in the development phase, and it remains to be seen whether it will be able to become a real alternative in the future.

In a final and informal session of the course, all participants could freely share with the main coordinator of the course, Dr Daniela Heerdt, our opinion on the past days, what we have learned, what we enjoyed and what aspects of the course could be improved.

Final thoughts

News, conferences, tweets, academic articles... different are the sources that tell us about the role of human rights in sport. During years of studying this subject, I always missed a course that addressed this subject from both a theoretical and practical point of view. Being able to participate in the Summer Programme has been an enriching opportunity for me. I am not just talking about intellectual enrichment, as the amount of information and lessons learned has exceeded my expectations. I go beyond that. Sharing a week of learning with people from different nationalities, ages, cultures or professional backgrounds brings much more than hours of reading in front of the screen. When a group of individuals share the same interests and decide to invest their time and resources in learning about human rights and sport, the likelihood of learning increases exponentially. Over the course of five days, a community was created at the Asser Institute where people could discuss any topic, contrast different positions, challenge the speakers and, of course, share moments of laughter and anecdotes. And the latter is what the programme has given me the most. Meeting a magnificent group of professionals who, in their day-to-day work, fight for sport to have a positive impact on the human rights of all those who are part of its ecosystem.

This year’s FIFA congress in Sao Paulo should not be remembered only for the controversy surrounding the bid for the World Cup 2022 in Qatar. The controversy was surely at the centre of the media coverage, but in its shadow more long-lasting decisions were taken. For example, the new Regulations on Working with Intermediaries was approved, which is probably the most important recent change to FIFA regulations. These new Regulations will supersede the Regulations on Players’ Agents when they come into force on 1 April 2015. In this blog post we compare the old and the new Regulations followed by a short analysis and prospective view on the effects this change could have. 

The Road to the New Regulations

Players’ agents, or “intermediaries” should we use FIFA’s new terminology, provide their services to football players and clubs to conclude employment contracts and transfer agreements. FIFA has been regulating this activity since it introduced the first Regulations on players’ agents on 1 January 1996. Even though the Regulations were amended several times since then, it is only during the last five years that a permanent consultation process was put in place. According to a FIFA press release, the consultation process involved member associations, confederations, clubs, FIFPro and professional football leagues. Surprisingly however, the press release does not mention whether agent stakeholders, such as Pro Agent were also consulted. The ultimate objective of these consultations was to propose a new system that is more transparent and simpler in its implementation and administration.[1] 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. Later on that year the Committee presented a draft for the FIFA Congress 2013 based on the following three 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 for intermediaries must be set up [2]

The draft Regulations were finally approved by the FIFA Executive Committee on 21 March 2014 and by the FIFA Congress on 11 June 2014. Furthermore, the three objectives outlined are supposedly reflected in the new Regulations.  

A Rough Comparison of the Old and New Agents/Intermediaries Regulations

In the following flowcharts we have summarized the key requirements enshrined in both the old and the new agents/intermediaries FIFA regulations. This provides a clear comparison of the differences and similarities existing between the two regulatory frameworks.

Flowchart: Becoming an Agent under the Old FIFA Regulations
FlowchartRegulationsPlayers'Agents.jpg (179.7KB) 

Flowchart: Becoming an Intermediary under the New FIFA Regulations
FlowchartRegulationsonWorkingwithIntermediaries.jpg (146.5KB)

By abandoning the old licensing system, the procedure to become an intermediary becomes much simpler than before. The applicant does not have to undergo an examination by FIFA anymore, nor does he need to conclude a professional liability insurance in his own name or provide a bank guarantee from a Swiss bank for a minimum amount of CHF 100,000. Furthermore, in contrast to the old Regulations, legal persons can now also act as intermediaries. Thus, in the near future we can expect players such as Cristiano Ronaldo, Radamel Falcao and coach Jose Mourinho to be represented by the agents’ company GestiFute rather than simply the agent Jorge Mendes. 

However, it should be noted that FIFA’s new Regulations on Working with Intermediaries are to be considered as minimum standards or requirements. In accordance with Art. 1(3), the right of associations to go beyond these minimum standards/requirements is preserved. In other words, national associations can set higher thresholds for becoming an intermediary should they wish for. In order to better understand the practical reality of the regulation of agents it is therefore necessary to analyse to what extent different associations set different standards and requirements.  

Registration

Under the new Regulations, the national associations will still be responsible for adopting a registration system regarding the intermediaries. However, several important changes between the old and the new Regulations can be deciphered, including the contractual terms between the intermediary and the player/club and the remuneration terms.  

Contractual terms

Under the old Regulations, the representation contract between the agent and the player and/or club would only be valid for a maximum period of two years. Moreover, the contract could be extended for another period of maximum two years (Art. 19(3) of the old Regulations). According to Art. 3 of the new Regulations, "intermediaries must be registered in the relevant registration system every time they are individually involved in a specific transaction". Players and clubs disclose all the details to the association when called upon. Thus, by allowing players not to be contractually bound to a specific intermediary for a specific period of time, the bargaining position of the player when engaging the services of an intermediary is likely to increase.

Remuneration terms

In both the old as well as in the new Regulations the amount of remuneration shall be calculated on the basis of the player’s basic gross income. [3] Nonetheless, where under the old Regulations the remuneration is calculated on the basis of the player’s annual income, under the new Regulations the remunerations is calculated on the basis of the player’s income for the entire duration of the contract. Moreover, as stipulated in Art. 7(3)a) of the new Regulations, the “total amount of remuneration per transaction due to intermediaries (…) should not exceed 3% of the player’s basic gross income for the entire duration of the contract”. Secondly, the new Regulations prohibit any payment to intermediaries when the player is a minor.[4] With the new provisions on remuneration FIFA hopes to avoid that intermediaries exploit players. Indeed, in many countries it is still common practice for players to (unknowingly) sign contracts with their agents forcing them to pay a much higher share of their income. This was perfectly possible under the old Regulations since it did not provide a remuneration limit due to the players’ agents and there was no prohibition regarding remuneration to the agent when the player is a minor and should be way more difficult under the new Regulations.

Conclusion
With the new Regulations FIFA attempts not to regulate access to the activity anymore, but instead to shape the practice itself: players and clubs are authorised to choose any parties as intermediaries and can change intermediary at any moment since they are not bound by a contract with the intermediary. Furthermore, with the remuneration limit of 3% of the player’s income FIFA aims to limit the risk of players being exploited by their intermediaries.

Even though FIFA has explicitly stated the new Regulations will not deregulate the profession, it seems that it is placing the main responsibility to regulate onto the national associations. Not only will all the national associations be required to introduce a registration system, but they are also responsible for enforcing the rules and for imposing sanctions in case the new Regulations are breached. As we have seen, when selecting an intermediary, players and clubs shall act with due diligence. However, the definition of the interpretation of the notion of due diligence is left open and could differ from country to country.

With the game of football becoming ever more globalised and with an ever increasing amount of international transfers of players, regulating the profession of agent/intermediary at the national level is becoming increasingly difficult. In this context, FIFA has adopted a surprising orientation by delegating the responsibility to regulate the profession to the national associations.

[1] http://www.fifa.com/aboutfifa/organisation/administration/news/newsid=2301236/

[2] http://www.fifa.com/aboutfifa/organisation/bodies/congress/news/newsid=2088917/

[3] The Regulations on Players’ Agents, Art. 20(1) and the Regulations on Players’ Agents, Art. 7(1)

[4] The Regulations on Players’ Agents, Art. 7(8)