Editor’s note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an Intern at the ASSER International Sports Law Centre.

In its decisions regarding the joint selling of football media rights (UEFA, Bundesliga, FA Premier league), the European Commission insisted that premium media rights must be sold through a non-discriminatory and transparent tender procedure, in several packages and for a limited period of time in order to reduce foreclosure effects in the downstream market. These remedies ensure that broadcasters are able to compete for rights that carry high audiences and, for pay TV, a stable number of subscriptions. In line with these precedents, national competition authorities have tried to ensure compliance with remedy packages. The tipping point here appears to be the premium qualification of sport rights on the upstream market of commercialization of sport TV rights.

This begs the question: which sport TV rights must be considered premium? The European Commission already held that European football championships, the Olympics and Formula 1 are premium rights but the question remains open for various other sports because they have not been the subject of competition proceedings yet. Two recent cases (the decisions are accessible here and here) brought before the French competition authority concerning rugby TV rights highlighted the need to bring out objective criteria to determine what are premium sport rights, bearing in mind that something premium in France may be qualified as non-premium in another market depending on its characteristics. Before discussing the need for legal certainty for sport rights holders, we will appraise the two French decisions on rugby and how premium sports are qualified.  

From non-premium to premium 

Canal Plus, the current holder of the rights, and the Ligue Nationale de Rugby (national rugby league, “LNR”) entered into a negotiated procedure regarding the renewal of their Top 14 TV rights. However, in December 2013, the procedure was unsuccessful and the LNR decided to terminate the contract it had with Canal Plus. In so doing, the LNR started a legal war with its former broadcaster. As one of the conditions for the approval of the TPS/Canal Sat merger, Canal Plus was required to give the LNR the option to terminate their contract at the end of the 2013/2014 season.[1] The LNR, deciding that the price Canal Plus was paying did not correspond to the reality of the market anymore, started an open call for tenders for the next four seasons which led Canal Plus to file several legal actions to challenge the interruption of the negotiations, the termination of the contract and the call for tenders. Almost immediately the LNR suspended the call for tenders and resumed its negotiations with Canal Plus. In January 2014, the exclusive TV rights for all the Top 14 matches were awarded to Canal Plus - not only for the subsequent four but ultimately the following five seasons (2014/2015 to 2018/2019). Canal Plus had to put 355 million euros on the table to acquire the exclusive rights, amounting to twice the amount it paid for the previous broadcasting contract. BeIN Sports, a newcomer on the French sport TV rights market,[2] filed a complaint and asked for interim measures with the Autorité de la concurrence.[3]

The French competition authority, in its decisional practice,[4] distinguishes six different markets for sport TV rights acquisitions: (i) the national football first division market (Ligue 1); (ii) the market for annual football championships involving French teams (Ligue, UEFA Champions League and UEFA Europa League); (iii) the market for the most attractive foreign football championships; (iv) the market for other football competitions; (v) the market for events of major importance other than football; and (vi) the market for sport competitions other than football and events of major importance (or “other rights”). The first five markets are better known as premium rights while the last one consists of all other non-premium rights. Rugby media rights were considered as non-premium before that decision.

The Autorité recognized that rugby and more importantly, the Top 14 championship, were facing an important growth in popularity as reflected by the high value of its broadcastings rights and the high audiences it attracts. At the time of the decision, rugby was the third sport, after football and tennis, in terms of viewers and Canal Plus accepted to pay an average of 71 million euros per season for the rights.

Top 14 average rights price per season (1998-2014) 

Canal Plus Top 14 audiences and best audiences per season (2008-2014)

The Top 14 appears to be an important source of subscriptions (pt. 100) which makes it particularly attractive for pay TV channels. This competition was the second driver of subscriptions (32%) for Canal Plus just after the Ligue 1 (51%) but before the UEFA Champions League (31%). In light of these circumstances, the Top 14 rights should be considered as premium TV rights.

Next, in considering which market these rights should belong to, the Autorité set four criteria to be met to decide on the relevant premium market: (i) key sales driver for TV subscription; (ii) high audiences; (iii) value over 10 million euros per season; and (iv) competition characteristics (level and regularity). Without being particularly clear, the Autorité seems to consider that the Top 14 rights belong to a separate premium market (pt. 138). As a consequence, given the particularities of the French market, the Top 14 rights shifted from the non-premium market to the premium market which means that their commercialisation should have been awarded through a transparent and non-discriminatory tender procedure, for a limited period of time and divided into several packages consistent with the national and European practices.[5] 

From non-premium to semi-premium? 

The question concerning the premium qualification of sport TV rights arose again in a more recent case[6] before the French competition authority, this time concerning the live broadcasting rights for rugby’s second tier (“Pro D2”). The LNR carried out a public consultation for the marketing of commercial rights for the Pro D2 championships for the 2015/2016 to 2019/2020 seasons. Following three rounds of negotiation, Canal Plus and Eurosport were awarded the rights for a total of 31 million euros. The third and rejected applicant, Ma Chaîne Sport (“MCS”), a fairly new but growing sports channel[7] and more importantly part of the Altice group (a multinational cable, fiber, telecommunications, contents and media company), filed a complaint before the French Autorité de la Concurrence. In this complaint, it claimed it was excluded from the selling process as a result of both a cartel between Eurosport, Canal Plus and the LNR, and an abuse of dominant position from the LNR on “the market for the acquisition of semi-premium sport TV rights” (pt.47).

The TV rights for the Pro D2 championship are part of the sport “other rights” market as the competition authority never had to decide on that particular case before. However, MCS is claiming that these rights should belong to a new and different market of semi-premium sport rights that, without combining together the usual criteria found in the jurisprudence to identify premium rights, are still able to attract significant audiences, making them sufficiently attractive to be of interest to premium channels.[8] MCS further argues that the Pro D2, the football Ligue 2 (second division), the basketball Pro A and the handball D1 (all first division) belong on that market. All those rights, with the exception of the Ligue 2 rights which are considered as premium, are valuable in terms of killer content for pay TV but currently belong to the non-premium rights market. The Autorité acknowledges that the non-premium rights market is set as default and brings together a heterogeneous set of rights in attractiveness and value (pt.55). It also acknowledges that some of these rights attract higher prices but not quite enough to meet the threshold of 10 million euros per season to be considered as premium. Referring to its consistent decision making, the Autorité considers that relying on a sole criterion, namely a higher selling price than the average prices in the non-premium market, is not sufficient to change the relevant market to a premium market, without a substitutability analysis (pt.58). As a consequence, those rights are still deemed to belong to the non-premium rights market.

The recognition of a semi-premium market would have led to a division in the non-premium rights market (i.e. semi-premium rights on the one hand and the remaining rights that are less valuable on the other hand). Once again, the Autorité points out that such a categorization within the non-premium category is irrelevant from a competition law point of view (pt.59). Establishing a specific premium TV rights market should involve legal consequences as usually occurs when TV rights shift from the non-premium market to a specific premium market. Within the same market, it is difficult to see what those legal consequences should be. The non-premium TV market is ruled by common contract law in contrast to premium rights that have to comply with a number of obligations to ensure compliance with EU competition law (open and transparent tendering process, packages, and limits in duration). Imposing those remedies on the semi-premium market would lead to the absorption of the market by the premium TV rights markets (pt.63). As a consequence, the Autorité finds that there is no legal need to define a semi-premium sport TV rights market.  

Towards legal certainty for sport rights holders

We have seen that the shift between non-premium and premium sport rights is the tipping point that leads rights holders to start open tendering processes for the selling of their rights. However, in France, the Code du Sport provides that sport federations are the owners[9] of the media rights for their sport. These federations can decide to transfer this ownership to clubs.[10] In this case, joint selling by the league is compulsory[11] and it has to be done through an open and transparent tender process, the rights must be packaged and they must be sold for a maximum period of four years.[12] The Code du Sport codifies the remedies imposed by the European Commission in the joint selling of football media rights cases, but it does not mention premium rights. These obligations are applicable in the case of transfer of ownership and where a professional league exists. Thus, in France it only applies in relation to football, rugby, basketball, volleyball and handball, five sport for which a professional league has been set up. In practice, the French football federation is the only federation that transferred the ownership of rights to its clubs for the first and second divisions[13] and, as a consequence, the football national league, responsible for the joint selling on behalf of the clubs, has to respect the obligations laid down in the Code. It is possible that, in hoping to circumvent those obligations, the other four federations decided to keep the ownership of the media rights. This is, in particular, the case of the rugby federation where the league is selling the media rights for the Top 14 and Pro D2 on behalf of the federation.[14]

Both decisions on the Top 14 and Pro D2 reintegrate the notion of premium and non-premium rights into the legal analysis. In the case of rugby, where the national provisions for the selling of sport rights did not apply because the federation was the owner of these rights and not the clubs, the shift from non-premium to premium rights leads to the application of competition remedies. Moreover, the Top 14 decision opens the way to tendering processes, packaging and the limiting of contract durations in cases of sports where national provisions do not apply because there is no professional league. Indeed, in this scenario, the media rights will be considered as premium because they fulfil all criteria. Hence, two scenarios can be envisaged: where a professional league exists, the federation has to decide whether it transfers the rights ownership to clubs and respects the obligations laid down in the law; and where it decides to retain ownership, or if there is no league, the federation or league has to make sure its rights are not premium in accordance with the Top 14 decision before deciding on the marketing procedure it has to follow.

The criteria developed by the French competition authority appear to be quite objective and effective as these criteria were also used by the Belgian competition authority in a dispute between Proximus and Telenet concerning the rights of the 2015-2016 cycle-cross Superprestige competition that were awarded to Telenet.[15] Telenet used the cumulative criteria from the Top 14 decision to show that cycle-cross does not constitute a separate market from the other cycling rights that are not premium. The national competition authority however, also referring to the French decision, considers that these rights should be on a separate premium market because of their popularity throughout Flanders and that they are subscriptions driver. The question remaining here is whether it would be useful to codify these criteria. First, it has to be stated that these criteria were only used in the case of live TV and that it is difficult to assess if they are objective enough to be used for all media transmissions (which are mostly Internet-based). On the other hand, media is a fast moving market and it is absolutely not certain that engaging in a legislative process to codify those criteria will give the margin of appreciation necessary to correctly assess premium sport media rights markets and prevent any distortion of competition. A full codification does not appear essential in that case and, as shown in the Belgian cycle-cross situation, these criteria can be used in other sports and markets to determine the premium qualification of media rights which gives a modicum of legal certainty to sport rights holders.

However, a question remains surrounding sport rights that almost fall within the premium market. For non-premium rights, rights holders have the freedom to decide how they want to organise the selling of their TV rights. As Telenet in the Belgian decision on cycle-cross rightly pointed out, the imposition of a transparent tender procedure for rights holders that belong to the non-premium market creates an imbalance as they do not have the same resources as the premium rights holders to organise such a costly tender procedure. Yet, in practice, and in the Pro D2 case, rights holders tend to organise tender procedures and unbundle their rights even though they are not legally obliged to do so. In the case of the Top 14, the LNR carried out a market assessment before even starting its negotiations with Canal Plus and should have known its rights fell into the premium category. The problem here for rights holders is to prevent any dispute arising after the selling process concerning the non-premium/premium qualification of the TV rights in question. Identifying a semi-premium category may be useful for rights holders in better managing the shift from non-premium to premium rights holders. Right holders that are close to seeing their non-premium rights become premium should carefully assess the commercial attractiveness of their rights and probably decide on a formal selling procedure in order not to risk their selling process being annulled by competition authorities.

As seen with these two French cases, the value of sport TV rights may change over time, depending on factors such as the improvement in the level of competition and the public interest, which creates the possibility for these rights to change categories. Moreover, this appreciation may change from one national market to another. Moving from the non-premium to premium market implies some important changes in the selling process and rights holders should carefully appraise the value and popularity of their sport beforehand. The criteria laid down in the Top 14 decision may be considered as guiding principles in this process and, accordingly, it may be used by other competition authorities faced with similar circumstances.

[1] Autorité de la concurrence, 12-DCC-100, 23/07/2012

[2] BeIN Sport is a French sport premium channel in direct competition with Canal Plus and Eurosport and owns an important portfolio of sport rights for football (Ligue 1, Ligue 2, UEFA Champions League and Europa League), rugby, tennis and handball in particular. In February 2016 Canal Plus announced it had reached an agreement to exclusively distribute beIN Sports. The French competition authority is expected to decide very soon on that issue.

[3] Autorité de la concurrence, 14-MC-01, 30/07/2014 and Cour d’Appel de Paris, arrêt du 09 octobre 2014.

[4] Autorité de la concurrence, 12-DCC-100, 23/07/2012.

[5] Commission Decision, UEFA Champions League (Case COMP/C.2-37.398), 23/07/2003

[6] Autorité de la concurrence, 16-D-04, 23/03/2016.

[7] MCS (from July 2016, SFR Sport channels) sport rights portfolio mainly consists of the competition rights overlooked by the biggest actors on the market. However, it owns some valuable rights such as the basketball Pro A (French first division basketball championship), the CEV DenizBank Volleyball Champions League, the WTA tour in tennis and more importantly, from 2016, the FA Premier League.

[8] « qui, sans réunir l’ensemble des critères habituellement retenus par la jurisprudence pour identifier un caractère premium, sont des moteurs d’audience significatifs pour les chaînes thématiques sportives et des contenus suffisamment attractifs pour également intéresser les chaînes premium », pt.49

[9] Code du Sport, articles L.331-1 and R.333-1

[10] Ibid, L.331-1

[11] Ibid, article R.333-2

[12] Ibid, article R.333-3

[13] See article 25 of the FFF/LFP convention

[14] See article 28 of the FFR/LNR convention

[15] Belgische Mededingingsautoriteit, 15-VM-65, 05/11/2015

Editor's note: Panagiotis Roumeliotis holds an LL.B. degree from National and Kapodistrian University of Athens, Greece and an LL.M. degree in European and International Tax Law from University of Luxembourg. He is qualified lawyer in Greece and is presently working as tax advisor with KPMG Luxembourg while pursuing, concomitantly, an LL.M. in International Sports Law at Sheffield Hallam University, England. His interest lies in the realm of tax and sports law. He may be contacted by e-mail at ‘p.roumeliotis@hotmail.com’.

Introduction

The landmark Bosman Ruling triggered the Europeanization of the labour market for football players by banning nationality quotas. In turn, in conjunction with the boom in TV revenues, this led to a flourishing transfer market in which players’ agents or intermediaries play a pivotal role, despite having a controversial reputation.

As a preliminary remark, it is important to touch upon the fiduciary duty of sports agents towards their clients. The principal-agent relationship implies that the former employs the agent so as to secure the best employment and/or commercial opportunities. Conversely, the latter is expected to act in the interest of the player as their relationship should be predicated on trust and confidence, as much was made clear in the English Court of Appeal case of Imageview Management Ltd v. Kelvin Jack. Notably, agents are bound to exercise the utmost degree of good faith, honesty and loyalty towards the players.[1]

At the core of this blog lies a comparative case study of the implementation of the FIFA Regulations on working with intermediaries (hereinafter “FIFA RWI”) in eight European FAs covering most of the transfers during the mercato. I will then critically analyze the issues raised by the implementation of the RWI and, as a conclusion, offer some recommendations.

FIFA RWI

In 2015, FIFA sought a new reform of football agents’ activity and adopted regulations on dealing with intermediaries[2] that are defined as “a natural or legal person who, for a fee or free of charge, represents players and/or clubs in negotiations with a view to concluding an employment contract or represents clubs in negotiations with a view to concluding a transfer agreement”.[3]

As solemnly illustrated in the Preamble, their purported aim is to bolster high ethical standards for the relations between clubs, players and third parties as well as enable proper control and transparency as regards player transfers.[4]  In a nutshell, FIFA devolved its regulatory powers to the national federations whereas it will just monitor the regulations’ proper implementation.[5]

Case studies of the national implementation of the RWI in eight countries

The concrete impact of the new RWI can be duly chartered through an examination of European FAs’ implementation (i.e. Belgium, England, France, Germany, Italy, Netherlands, Portugal, and Spain) as Europe possesses by far the biggest transfer market globally.

Registration

The registration process is a conditio sine qua non for agents. Based on a literal interpretation of the RWI, agents’ registration should occur on a transactional basis[6] and it is conferred upon clubs and players to provide to the respective FA the intermediary declaration and representation contract.[7] As FAs are empowered to go beyond the minimum requirements enshrined in FIFA’s RWI[8] in some instances they have implemented different requirements.

Burdensome character

For purposes of tracking and tracing their activity, agents should, subject to signing and filing the so-called “intermediary declaration”, be registered with the FA where they exercise their profession. Ergo, the plethora of administrative rules simultaneously applied constitute glaring obstacles, as they allegedly impede the provision of services on behalf of agents[9] and, on top of that, the enhanced amount of registration fees[10] is burdensome. The net result seems to be that a “fragmented and multi-tiered system”[11] does not seem compatible with EU law. It is more likely than not that by curtailing the development of agents’ business, EU law (i.e. restraint on competition, free movement of services) is infringed.

Lack of qualification assessment 

Apart from France[12], where candidates must sit a written examination and Spain[13], where a personal interview with the respective FA takes place, in principle, such assessments are not considered. 

The self-certification of impeccable reputation does not guarantee the quality of the services rendered by agents and the possession of the requisite skills thereto. In fact, the EU Sectoral Social Dialogue Committee for Professional Football confirmed a decreased quality of said services. The obligation to undertake a serious examination should, a fortiori, be taken seriously into account and put into practice as it will offer guarantees of objectivity and transparency.

Of course one could contradict that agents derive their value from their extensive network of contacts and market knowledge;[14] instead of their education or license. Nevertheless, qualitative criteria need to be set as a condition for eventual registration, as players should only have the option to gravitate towards agents that can deploy them quality services. This is further fortified by the fact that football has become a sophisticated business, whereby complex contracts plausibly require qualified assistance so as to achieve a better protection of players’ rights.[15]

Remuneration

In theory, agents should be entitled to receive remuneration so long as they have brought about the employment contract/transfer agreement for which they have been engaged. The mere introduction of the parties to a contract, without evidence of contribution to said conclusion, is not sufficient[16] as the entitlement to commission crystalizes upon the provision of services.

Reality bears witness to the fact that the recommended 3% benchmark cap inserted in the FIFA RWI[17], albeit being the apple of discord in recent discussions, has not been interpreted by FAs as a “must”. Only 4/8[18] FAs have transposed such recommendation in their domestic RWI while the others[19] have ignored it.

A glance at current numbers proves that, in spite of the recommended cap, agents’ fees have swelled; as from 2013, UEFA clubs have spent 97.2% (i.e. USD 1.54 billion) of the commissions pocketed by intermediaries globally. Going forward, it is indicative that as per the UEFA Report for the FY 2016, the average commission rate amounted to 13% in Belgium, England, Italy and Portugal, 9% in France, 15% in Germany, 12% in the Netherlands and 8% in Spain. The above figures succinctly demonstrate that FIFA’s recommendation has not led to a de facto limitation of the remuneration paid to agents. This is also confirmed by a report for the EC that outlined the increase in agents’ fees following FIFA’s deregulation.

Benchmark cons

Potential low remuneration cap would, unavoidably, incite agents to breach their fiduciary duty and favour their own interests. Exempli gratia, they would rather clinch deals in FAs that contemplate higher commission fees, even if it is contrary to the best interests of their client’s career. Furthermore, reprehensible practices would definitely take place since agents’ commission and players’ remuneration function inversely (i.e. the more agents receive, the less players earn), while it is also likely that agents would be discouraged to provide high quality services.

In the same vein, it could lead to collision with EU law. As a matter of fact, it has already raised EU competition law concerns as some have considered it a disproportionate encroachment on agents’ economic freedom, thus, infringing Articles 101 and 102 TFEU.

Benchmark pros

 On the flip side, I would like to play devil’s advocate going forward. Should the 3% cap on fees apply, this would ward off “agents” whose sole purpose is to make “quick and dirty” money. Therefore, the 3% cap could work as an indirect assessment of the ones who are worth of being agents.

Conflicts of interests 

From the outset of the eventual transaction, players/clubs should endeavor to assure that no conflicts of interest exist.[20] 6 out of 8 FAs[21] have transposed ad litteram the provision stipulating the right of intermediaries to represent multiple parties to a transaction, so long as they have articulated in advance potential conflicts of interest and received written consent by all parties involved. The CSKA Sofia v. Loic Bensaid case could be considered as a precursor to this provision, in which it was stressed that an agent who represents both player and club does not commit fraud so long as he has made the situation transparent to the parties.[22]

In my view, said provision ostensibly solves potential conflicts of interest but de facto goes against agents’ fiduciary duty and ineluctably leads to such conflicts. By way of comment, should an agent represent both the player and the destination club, he would have to act in a neutral manner, which will adversely affect the player’s interests. In order to maintain healthy relationships with the club so as to facilitate future transactions, it is more likely that he will not seek the maximum salary possible for the player. Conversely, should the agent represent both the player and the club of origin, one can easily understand that a higher transfer fee reduces the player’s salary and vice versa.

In my view, with such provision, unwittingly or not, an own-goal has been inflicted as FAs are not incentivized to crack down on potential conflicts of interest. At least, if the French[23]/Portuguese[24] practice is not followed (i.e. dual representation is prohibited), the English model[25] could be an attractive solution. Notably, the possibility to seek independent legal advice should be construed as a necessary requirement that will safeguard players’ sporting/financial interests from being compromised.

Minors

Almost all FAs outlawed payments when the player is a minor.[26] Portugal[27] seems to have applied a more stringent standard (i.e. representation is totally forbidden), while Italy[28] does not stricto sensu prohibit such remuneration.

One might be tempted to conclude that outlawing payments is commendable but such perception is erroneous as the premise behind it goes against the players’ interests:

• Agents not receiving consideration in exchange for their services would most likely not provide the best advice for their client, as, “good advice comes at a price”[29]
• Agents would have a vested interest to tie up youngsters for many years, which might, in turn, work at their expense, as the former might seek to capitalize their investment in the players as soon as they get 18 years old. As submitted, when it comes to minors, unscrupulous agents can go “forum shopping” and seek to conclude a representation contract in the most favorable jurisdiction,[30] i.e. the one that does not limit the duration of said contract.

The foregoing should be read in conjunction with the fact that in modern football there are lots of talented young players with potential to become a bone of contention for agents. Further to this, due account should be taken of the fact that UEFA’s “home grown player rule” and the UEFA Financial Fair Play Regulations push clubs to invest in youngsters and this renders their circulation in the market more common than in the past.

The statistics provided by FIFA ITMS show that minors are the category of players who have most often used an agent, in 17.6% of the concluded international transfers against 15.2% and 14.5% between 18-25 and 26-32 years old, respectively. Therefore, it borders on the absurd that agents cannot be remunerated when engaged in transactions involving minors.

On top of that, higher thresholds ought to have been imposed i.e. the representation contract should have a limited term and for this, a useful inspiration could be derived from the case of Proactive Sports Management v Wayne Rooney, where it was decided that the eight-year image rights representation agreement[31] constituted an unreasonable restraint of trade.

Duration of the Representation Contract

FIFA’s RWI left a normative vacuum by not including a provision on the maximum duration of a representation contract. However, my comparative study shows that 5/8 FAs[32] impose a maximum 2 year term on the representation contract.

Such a limit protects not only the players’ but also the clubs’ interests against potential abuses involved in the engagement of agents for long periods.[33] Furthermore, it avoids conflicts pertaining to restraint of trade as the absence of limits could lead to players being tied to their agent for a disproportionate period of time.

However, since exclusivity (i.e. maximum duration of contract) is not prescribed in FIFA RWI, this could imply that they provide a safe harbor to players not to be contractually bound for a predetermined period of time. As submitted, this grants the players more bargaining power and would, indirectly, force agents to act in the best interests of their clients.[34]

Harmonization at European level

It is crystal clear that multiple national disparities exist in the regulation of agents. Hence, I believe a streamlined uniform regulatory framework is needed at the European level and, as such, could be put in place by UEFA’s FAs.

FAs Partnership

As football’s transfer money and underlying intermediaries’ commission fees are mostly concentrated in Europe, it should be underscored that consolidated RWI at the level of all European FAs would provide a more potent regulatory space and countervail “FIFA’s regulatory relinquishment”.

As FIFA switched the onus to FAs, some of them could come together and become embroiled in enforcing an enhanced monitoring system and stricter conditions of access to the profession. This has also been supported by the EU Sectoral Social Dialogue Committee for Professional Football, which formulated that such harmonized European policy is the desirable next step for a better regulatory oversight of agents. Such partnership could be a laudable response to the calls for a centralized and harmonized mandatory licensing system. It should be done in cooperation with the EFAA, so as to take into account the agents’ perspective and likely facilitate adherence to the regulations.

In this respect, it would be prudent to follow the examples of other Sports Associations. For example, FIBA when formulating effective regulations pertaining to agents promoted harmonization while involving the agents through consultation of AEBA. Pursuant to the latest EC Report, the National Basketball Players Association (“NBPA”) Regulations could also be considered as an example to follow, as they enhance the “professionalization” of agents and are based on a mandatory licensing system while setting accomplished higher education as an indispensable condition. The NFL, on the other side of the Atlantic, is also an interesting example as it requires a university degree or sufficient negotiating experience of minimum 7 years.

As it is generally felt that the agents’ business is “unethical, complex and deceptive”, thus stringent conditions should be imposed to enter the profession. A qualitative selection process is indispensable. Players must be able to rely on agents equipped with the necessary skills and knowledge. FAs should look back at the Piau case where the compulsory licensing system was duly endorsed as legitimate by the then Court of First Instance of the EU, inter alia, on the basis that it was necessary to introduce “professionalism and ethical standards to protect players whose careers are short”.

UEFA

On a separate note, UEFA, as it claims to operate in a spirit of consensus with all its stakeholders, has to be the leading frontrunner of a harmonised regulation. In the framework of Article 165 TFEU and UEFA’s conditional supervised autonomy[35], this could be done in dialogue with the EC that possesses coordination competence with regard to sport, so as to ensure that potential new regulations can resist challenges on grounds of restraint of trade and alleged infringements of EU law. The Arrangement for Cooperation signed by the UEFA and EC earlier in February 2018 could be a good starting point going forward.

Conclusions

It is unequivocal that FIFA’s RWI advent has had as a main repercussion the deregulation of the industry, or better put, the granting of autonomy to the FAs to regulate said industry using the minimum standards as the cornerstone. The case study, though, evidences that important disparities exist between crucial provisions of the various European FAs’ RWI, which leads to compounding practical and ethical problems and to higher risks of forum shopping. 

It is forthwith conspicuous that such disparities create challenges, which could be duly faced, first and foremost, by accepting that agents are inherent to the mercato and, as previously alluded, by taking account of their fiduciary duty. Ergo, it is contingent upon European FAs, in the framework of UEFA, to cooperate so as to adopt a robust unified regime that will bring forward sweeping and streamlined changes to the profession. To do so, agents’ should be consulted and respected, as in the modern era of professional football, “they are the oil that keeps the wheels of international football in motion.”[36]

[1] WALTER T. CHAMPION, “Attorneys Qua Sports Agents: An Ethical Conundrum” (1997) 7 Marquette Sports Law Journal 349, 350.

[2] The term “agent” will be used, as it constitutes the international jargon.

[3] 2015 FIFA RWI, Definition of an intermediary.

[4] 2015 FIFA RWI, Preamble.

[5] 2015 FIFA RWI, Article 10.

[6] JUAN DE DIOS CRESPO and PAOLO TORCHETTI, “Limiting intermediaries’ fees and enhancing fiduciary duty” [2018] World Sports Advocate 11, 12.

[7] 2015 FIFA RWI, Articles 3 and 6(1).

[8] 2015 FIFA RWI, Preamble.

[9] JUAN DE DIOS CRESPO and PAOLO TORCHETTI, “FIFA’s new Regulations on Working with Intermediaries” [2015] Football Legal 36.

[10] Annex 11 to the URBSFA Regulations, Article 4 [1.3]; The FA website, Intermediaries Registration [online]. Available at: http://www.thefa.com/football-rules-governance/policies/intermediaries/intermediaries-registration [accessed on 1 May 2018]; Code du Sport, Article L.222-7; FIGC, Regolamento per i Servizi di Procuratore Sportivo, Art. 4(1), 4(3) and 5; KNVB Regulations, Article 2(6); PFF Regulations, Article 7(2); RFEF Regulations, Article 7.

[11] JUAN DE DIOS CRESPO and PAOLO TORCHETTI, “FIFA’s new Regulations on Working with Intermediaries” [2015] Football Legal 37; ORNELLA DESIREE BELLIA “FIFA Regulations on Working with Intermediaries: Analysis from the perspective of the clubs” in MICHELE COLUCCI (ed) The FIFA Regulations on Working with Intermediaries, Implementation at National Level (2^nd ed., International Sports Law and Policy Bulletin 1/2016) 57-66, 59.

[12] Code du Sport, Article L.222-7.

[13] RFEF Regulations, Article 4.

[14] IAN LYNAM and JONATHAN ELLIS, “Players’ Agents”, in ADAM LEWIS QC and JONATHAN TAYLOR (eds), Sports: Law and Practice (3rd edition, BLOOMSBURY 2016), 1418 – 1478, 1420.

[15] SALEH ALOBEILDI, “FIFA’s RWI – Historical overview” [2015] Football Legal 30.

[16] CAS 2006/A//1019 G. v. O., award of 5 December 2006 (anonymized) [11].

[17] 2015 FIFA RWI, Article 7(3).

[18] Annex 11 to the URBSFA Regulations, Article 8 [3]; FA Regulations, Rule C (11); FIGC, Regolamento per i Servizi di Procuratore Sportivo, Art. 6; KNVB Regulations, Article 8(6).

[19] Code du Sport, Article L. 222-17 ; DFB Regulations, Section 7.1-7.2; PFF Regulations, Article 11 ; In Spain no remuneration cap has been prescribed.

[20] 2015 FIFA RWI, Article 2(2).

[21] Annex 11 to the URBSFA Regulations, Article 9 [3]; FA Regulations, Rule E (2) a-c; DFB Regulations, Article 8; FIGC, Regolamento per i Servizi di Procuratore Sportivo, Art. 7; KNBV Regulations, Article 4; RFEF Regulations, Article 12.

[22] CAS 2012/A/2988, PFC CSKA Sofia v. Loic Bensaid (award of 14 June 2013) paras 74, 82 and 101.

[23] Code du Sport, Article L.222-17.

[24] PFF Regulations, Article 5(3).

[25] FA Regulations, Rule E (2) d.

[26] Annex 11 to the URBSFA Regulations, Article 8 [8]; FA Regulations, Art. C (10) ; Code du Sport, Article L.222-5; DFB Regulations, Art. 7.7; KNVB Regulations, Article 8(7); RFEF Regulations, Article 10.

[27] PFF Regulations, Article 5(4); The Physical Activity and Sports Basic Law (“PASBL”) or Law no. 5/2007, Article 37(2).

[28] SALVATORE CIVALE and MICHELE COLUCCI, “The FIGC Regulations on Intermediaries” in MICHELE COLUCCI (ed) The FIFA Regulations on Working with Intermediaries, Implementation at National Level (2^nd ed., International Sports Law and Policy Bulletin 1/2016) 329-338, 335.

[29] JEAN-MICHEL MARMAYOU, “EU Law and Principles applied to FIFA Regulations” in MICHELE COLUCCI (ed) The FIFA Regulations on Working with Intermediaries, Implementation at National Level (2^nd ed., International Sports Law and Policy Bulletin 1/2016) 75-112, 91.

[30] ROBERTO BRANCO MARTINS, “FIFA’s RWI – Agents’ perspective” [2015] Football Legal 50.

[31] The judge supported his argumentation by making reference to the obsolete FIFA Regulations, which stipulated that representation contracts were limited to a maximum two-year term, attaching to said agreement a unique character.

[32] FA Regulations, Art. B (10); FIGC, Regolamento per i Servizi di Procuratore Sportivo, Art. 5; PFF Regulations, Article 9(2) §c; RFEF Regulations, Article 8(4).

[33] CAS 2008/A/1665, J. v. Udinese Calcio S.p.A, (award of 19 May 2009) para 54.

[34] WIL VAN MEGEN, “The FIFA Regulations on Intermediaries: The players’ point of view” in MICHELE COLUCCI (ed) The FIFA Regulations on Working with Intermediaries, Implementation at National Level (2^nd ed., International Sports Law and Policy Bulletin 1/2016) 67-74, 74.

[35] BORJA GARCIA, “Sport governance after the White Paper: the demise of the European model?” (2009) 1:3 International Journal of Sport Policy 267; It was firstly stated in the Meca-Medina case [47]: “restrictions imposed by sports federations must be limited to what is necessary to ensure the proper conduct of competitive sport”.

[36] ROBERTO BRANCO MARTINS and GREGOR REITER, “Players’ Agents: Past, Present … Future?” (2010) 1-2 The International Sports Law Journal 7.

Beginning of April 2014, the Colombian Olympic Swimmer Omar Pinzón was cleared by the Court of Arbitration for Sport (CAS) of an adverse finding of Cocaine detected in a urine sample in 2013. He got lucky. Indeed, in his case the incredible mismanagement and dilettante habits of Bogotá’s anti-doping laboratory saved him from a dire fate: the two-year ban many other athletes have had the bad luck to experience.  

Contrary to a social drug like cannabis, cocaine is not a specified substance under the World Anti-Doping Code (WADC) and therefore does not enjoy a lenient status. The sanctions endured in case of a positive cocaine test under the WADC are severe, i.e. in the absence of any exceptional circumstances a strict two-year ban. But, cocaine is not a normal drug either; its powdered form is widely consumed in a social and festive context, whereas the coca leaves are still used in South America.  

Thus, it is not very surprising that it is also one of the most widely detected stimulants in the framework of the fight against doping. How does one differentiate between an unlucky fellow and an outright cheat? You just don’t! As a principle, the CAS has adopted a strict interpretation of the WADC and shifts a heavy burden of justification on the athlete’s shoulders.  

 In theory, the World Anti-Doping Code 2009 foresees in article 10.5 that an ineligibility could be annulled, in case of  ‘[n]o fault or negligence’ (10.5.1) or reduced in case of  ‘[n]o significant fault or negligence’  (10.5.2). However, in practice the CAS interprets very strictly the scope of these provisions. One of the few exceptions was the Gasquet case. On this occasion, the CAS acknowledged that the athlete was not at fault for having ingested cocaine. This was due mainly to the very specific factual circumstances: Gasquet was found to have been contaminated through a fatal kiss.  

In general, the ‘no (significant) fault or negligence’-standard is quasi impossible to reach. We have found a certain number of examples in the CAS case-law to illustrate this point. In its first award involving cocaine, the CAS considered that an athlete, who was unknowingly given coca tea to drink and coca leaves to chew during a trip in the Andes, had acted negligently and therefore could not see his ineligibility reduced (CAS 2004/A/690). Later on, the CAS refused to consider as probable the fact that a spiked cocaine cigarette could have been given to an athlete, thus triggering the contamination (CAS 2006/A/1130). Moreover, it also rebuffed, the “peer pressure” argument put forward by a young football player (CAS 2007/A/1364).   

So far, CAS panels have refused to consider the fact that the consumption occurred out of competition as a mitigating factor (CAS 2008/A/1479). But arbitrators also rejected more sophisticated arguments, such as the ones advanced by Simon Daubney, an America’s cup sailor, who argued that his contamination was due to a spiked drink prepared by supporters of a rival team. Concretely, the panel considered that “[a]s an experienced athlete, he could not ignore that he should pay attention to what he was drinking and from whom he got the drinks, which he did not” (CAS 2008/A/1515). The consumption of cocaine “in a moment of euphoria but not with the intention to increase his athletic performance capability” was definitely not meeting the ‘[n]o significant fault or negligence’ standard (CAS 2008/A/1516). Smoking a joint of cocaine, at a party, four days before a competition, was likewise considered significantly negligent (CAS 2009/A/2012). Finally, a Brazilian football player arguing that he was addicted to cocaine, did not convince the panel either. The arbitrators doubted that he could not have taken precautions to avoid using cocaine during ‘in-competition’ periods (CAS 2011/A/2307).  

All the above-mentioned athletes have faced a two-year ban. In short, the CAS remained ice-cold when dealing with athletes having ingested, voluntarily or not, cocaine. 

The new WADC entering into force in 2015 will not change much for an athlete who tested positive for cocaine. In fact, he still has to demonstrate that he acted without (significant) fault or negligence to obtain a reduced ban. Thus, unless the CAS shifts its interpretation in this regard, the hurdle will remain very high. But is it fair that an athlete, who has not intentionally taken cocaine and could not profit from it to improve his sporting performance, gets a two-year ban? One can doubt it. Such a strict reading of the WADC by the CAS can only lead to the piling up of judicial vendettas by athletes drawn to the national or European courts seeking revenge and justice. This state of play might, sooner or later, bring the whole anti-doping system to its knees (the edifice has already started to tremble with the recent Pechstein ruling). Hence, for the sake of preserving a global anti-doping regime, it is high time that the CAS adopts a lenient interpretation of the ‘no (significant) fault or negligence’-standard and starts adapting the level of the sanctions to the responsibility of the athletes involved.  

A longer version of this post is available on SSRN.