Out of all the State aid investigations of recent years involving professional football clubs, the outcome of the Real Madrid case was probably the most eagerly awaited. Few football clubs have such a global impact as this Spanish giant, and any news item involving the club, whether positive or negative, is bound to make the headlines everywhere around the globe. But for many Spaniards, this case involves more than a simple measure by a public authority scrutinized by the European Commission. For them, it exemplifies the questionable relationship between the private and the public sector in a country sick of never-ending corruption scandals.[1] Moreover, Spain is only starting to recover from its worst financial crisis in decades, a crisis founded on real estate speculation, but whose effects were mostly felt by ordinary citizens.[2] Given that the Real Madrid case involves fluctuating values of land that are transferred from the municipality to the club, and vice versa, it represents a type of operation that used to be very common in the Spanish professional football sector, but has come under critical scrutiny in recent years.[3] 

By ordering the recovery of the granted State aid, the Commission showed that certain (land) transaction agreements between a public authority and a private entity can be caught by EU (State aid) law, regardless of the size and fame of the private entity. The ‘Real Madrid Saga’ (which, in addition to the Commission’s final decision, also includes the Commission’s opening decision, a number of rulings by Spanish national courts[4], a more than likely review by the Court of Justice of the EU, and a new deal between the club and the municipality) might serve as harbinger, in the professional football sector at least, for a shift towards more transparent and responsible conduct by clubs and public authorities.

This two-part blog will attempt to provide an overview of the ‘Real Madrid Saga’ in its broadest sense. The first part will briefly[5] outline the facts that led to the opening of the State aid investigation, and then analyse the role played by the Spanish national courts in the ‘Saga’. The second part will focus on the recovery decision of 4 July 2016 and dissect the arguments used by the Commission to reach it.  

The facts

The municipality of Madrid and Real Madrid have a rich history of land transactions. In fact, a particular agreement from 2001 was already questioned by a Member of the European Parliament, even though the European Commission, at that time, saw no reason to launch a full State aid investigation.

However the agreement of 29 July 2011 did not manage to escape Commission scrutiny. This agreement, referred to by the Commission as the “2011 settlement agreement”[6], settled two earlier agreements between the city Council and Real Madrid dating from 1991 and 1998 respectively. A simple analysis of the 2011 settlement agreement clarifies why the Commission doubted its legality. In 1998 Real Madrid transferred half of their old training grounds to the municipality. Additionally to a large sum of money, the club was to receive a number of terrains spread out over the municipality, including a terrain located in the area called Las Tablas valued by the technical services of the municipal administration at €595.194 in 1998.[7] At that time, the two parties “were of the opinion that the classification ‘reserved for sport’ would not exclude its transfer to private ownership”. This land was however never officially transferred to Real Madrid, and the entry of a local urban law in 2001 made the actual transfer legally impossible, because it stipulates that plots reserved for sport must be in public ownership. This was confirmed in 2004 by the Tribunal Superior de Justicia de Madrid (Madrid High Court), which ruled that the local urban laws prevent any private entity from holding the legal property over this type of plot (like the terrain in Las Tablas).[8] As a result, in 2011, the Council decided to compensate the football club not for the original value of €595.194 but for a staggering €22.693.054,44! Once again, this value was determined by the technical services of the municipal administration. Real Madrid was not compensated in the form of a sum of money, but rather it was presented with a packet of terrains including four terrains of a total area of 12.435 m/2 in the street Mercedes Arteaga in the Carabanchel district of Madrid.[9]

This last plot of land transferred to Real Madrid formed the subject of another land agreement dating from November 2011. The agreement became known as operation Bernabeú-Opañel and consisted of the following: The Council is to transfer to the club a terrain which borders the Bernabéu stadium. This would permit Real Madrid to cover its stadium with a roof, and to build a shopping centre and a hotel on the façade situated on the Paseo de la Castellana (one of Madrid’s most important streets). In return, the club agreed to transfer to the Council the shopping centre Esquina del Bernabéu, which is situated on the other side of the stadium. The Council would then demolish the shopping centre and convert it into a public park. The club also promised to transfer back to the Council parts of the four terrains located in the street Mercedes Arteaga that it received as part of the 29 July 2011 Agreement. In addition to the transfers of the old shopping centre and the terrains located in the street Mercedes Arteaga, Real Madrid is also to pay €6.6 million to the Council. The Council, however, encountered an obstacle in its own urban laws, which did not permit private parties, like Real Madrid, to construct on public terrains owned by the Council. Therefore, on 16 November 2012, the Government of the autonomous region of Madrid announced that the local urban law was to be modified ad hoc to enable the operation Bernabeú-Opañel.[10]

Even though no formal State aid complaint was ever submitted, the Commission nonetheless opened a formal investigation on 18 December 2013 based on “press reports and information sent by citizens”.[11] In its opening decision, the Commission provided a preliminary assessment of the 2011 settlement agreement under the EU State aid rules. It expressed doubts with regard to the legality of the transfer of the terrain in Las Tablas to Real Madrid; with regard to the evaluation of the market value of the Las Tablas plot of land; and with regard to market conformity of the value of the properties which were transferred to Real Madrid by the 2011 settlement agreement. Interestingly enough, although the Commission barely mentioned the operation Bernabeú-Opañel in its preliminary assessment (let alone assess it), it also doubted whether the subsequent exchange of land around the Bernabéu Stadium was carried out at market conditions.[12] 

The role of the national courts

In January 2012, the ecological movement Ecologistas en Acción (EeA) found several legal irregularities with regard to the Bernabeú-Opañel agreement, including the fact that no mention was made of the 2011 settlement agreement. It subsequently started legal proceedings in front of the Spanish administrative Court claiming that the ad hoc modification of the urban regulations was contrary the general interest and sought its annulment under Spanish law. In March 2013, a second action for annulment of the operation Bernabéu-Opañel was sought by the Ruiz-Villar family. For the sake of clarification, in the past this family was the owner of the land on which the Bernabéu stadium is build, as well as the plot of land next to the Bernabéu stadium that the Council wants to transfer to Real Madrid. Their action led to the judgment by the Madrid High Court of 2 February 2015, which will be elaborated on below. 

The Order for Interim Measures of 31 July 2014

At the time the European Commission opened a formal investigation in December 2013, EeA’s action for annulment under Spanish law was pending at the Madrid High Court. The fact that the European Commission was investigating the matter provided EeA the legal opportunity to invoke the so-called ‘standstill obligation’. The ‘standstill obligation’, found in Article 108(3) TFEU has direct effect and can therefore be called upon in front of national courts. Article 108(3) reads as follows: “The Member State concerned shall not put its proposed measure into effect until this procedure has resulted in a final decision (by the Commission)”. In other words, from the moment the Commission starts investigating the alleged State aid measure, the national court has an obligation to protect competitors and other third parties against (potential) unlawful aid since the Commission’s own powers to do so are limited.[13] It is, furthermore, settled case law that third parties who are not affected by the distortion of competition resulting from the aid measure can also have a sufficient legal interest of a different character, such as EeA, in bringing ‘standstill’ proceedings before a national court.[14]

EeA could not invoke the ‘standstill obligation’, as regards the 2011 settlement agreement, since the land transactions subject to that agreement had already taken place. Therefore, its focus was on preventing Real Madrid from carrying out the Bernabéu-Opañel project until the Commission closed its State aid investigation. On the one hand, this focus made sense given that EeA was also involved in a case in front of the same Court aiming to annul the operation Bernabéu-Opañel. On the other hand, it was not prima facie clear whether the ‘standstill operation’ also applied to the operation Bernabéu-Opañel, since the Commission’s opening decision made little reference to this project. In other words, it was not known whether the Commission was, in fact, actually investigating this operation.

In its Order for Interim Measures of 31 July 2014, the Madrid High Court stated that“(i)t does not correspond to this Chamber to determine at this procedural moment whether the transaction constitutes an illegal State aid or not but the inclusion of [the plots located in the street Mercedes Arteaga] in the scope of the [operation Bernabéu-Opañel] are sufficient circumstantial elements in order to determine a direct connection between the investigation undertaken by the Commission and the object of the present appeal”.[15]

With the link between the 2011 settlement and the operation Bernabéu-Opañel established by the Court, it recognised two possible reasons to suspend the renovation of the Bernabéu stadium:

- To safeguard the interests of the justiciable;

- To protect the affected parties by the distortion of competition caused by the aid.[16]

As regards the former, in essence the Madrid High Court had to decide whether EeA had standing to request the ‘standstill’. The CJEU has been quite clear on this matter: in principle, national procedural rules apply to ‘standstill’ proceedings.[17] In Spain, in administrative cases involving urban matters, the so-called acción publica urbanística, or urban public action principle, applies. This principle grants very extensive procedural rights to third parties who have a limited direct interest to launch proceedings in urban matters, including EeA in the Real Madrid case.[18] Indeed, given the possibility that procedural rights for third parties in urban matters are broader in Spain than in some, if not most, other EU Member States, standstill proceedings in other Member States could well be declared inadmissible for lack of interest under similar conditions.

With the standing of EeA recognized, the Court went on to suspend the renovation of the stadium not only to protect EeA of the distortion of competition caused by the concession of the aid, but also to protect Real Madrid itself. Allowing the renovation to go ahead could have very negative consequences for the football club if the aid were ordered to be recovered, such as the demolition of the newly renovated part of the stadium.[19] The argument that the suspension served to protect Real Madrid is hard to follow, since, as the EU State aid rules stipulate, it is up to the Member State to decide how incompatible State aid is recovered.[20] The Spanish authorities ordering Real Madrid to demolish its own stadium seems to be a rather exaggerated eventuality. Furthermore, one wonders whether suspending the renovation of the stadium really helps Real Madrid when, at that stage, there were not that many indications that the Commission was actually investigating the operation Bernabéu-Opañel.  

The judgment of 2 February 2015 ordering the annulment of the operation Bernabéu-Opañel

Any remaining criticisms regarding the Madrid High Court’s decision to suspend the renovation of the stadium were swiftly set aside when the same Madrid High Court annulled the whole operation in its judgment of 2 February 2015. As explained above, this was based on the action of annulment sought by the Ruiz-Villar family. This blog will not analyse this judgment in full detail, because it does not make any reference to the State aid investigation or any other aspect of EU law. The important element to take from this judgment, however, is that an ad hoc modification of the (local) urban law is only valid if it fulfils the general interest and not just the interest of one (private) party.[21] Real Madrid has publicly expressed that it intends to “convert the Club in a sporting institution of reference in the world. The aim is for the stadium to have a maximum level of comfort and services superior to the most modern and advanced sporting stadiums in the world”.[22] This objective was not considered by the court to be an objective of general interest and, consequently, does not allow for an ad hoc modification of the urban laws.

As a result, Real Madrid had to restart its entire renovation project while a potential negative decision State aid decision from the European Commission was still looming. Moreover, as will be shown in the second part of this blog, even though this judgment did not make a single reference to the State aid investigation, it still played an important role in the final outcome of the investigation.

[1] Elena G. Sevillano and Bruno G. Gallo, “Así gana el Madrid”, El País, 6 November 2011. See also “Ten Spain corruption scandals that will take your breath away”, The Local, 28 January 2016.

[2] Ozlem Akin et al., “The Real Estate and Credit Bubble: Evidence from Spain”, Barcelona GSE Working Paper Series Working Paper nº 772.

[3] See for example Nefer Ruiz Crespo, “Urban speculation by Spanish football clubs”, in Transparency International, “Global Corruption Report: Sport”, Routledge February 2016; and “Spain Corruption Report”, GAN Business Anti-Corruption Portal.

[4] Most notably Tribunal Superior de Justicia de Madrid - Sección nº01 de lo Contencioso- administrativo - Pieza de Medidas Cautelares- 357/2013 – 01, 31 July 2014; and Tribunal Superior de Justicia de Madrid - Sección nº01 de lo Contencioso- administrativo – Procedimiento Ordinario 371/2013, 2 February 2015.

[5] The background information on the Real Madrid case is more extensively found in a previous blog entitled: Oskar van Maren, “The EU State aid and Sport Saga – A blockade to Florentino Perez’ latest “galactic” ambitions (part 1)”.

[6] Commission decision SA.33753 of 4 July 2016 on the State aid implemented by Spain for Real Madrid CF, para. 6.

[7] Ibid, para. 10.

[8] Ibid, paras. 13-15.

[9] Oskar van Maren, “The EU State aid and Sport Saga – A blockade to Florentino Perez’ latest “galactic” ambitions (part 1)”.

[10] Ibid.

[11] Commission decision SA.33753, para. 1. For more information on why the Commission opened this case without a formal complaint, see Ben Van Rompuy and Oskar van Maren, “EU Control of State Aid to Professional Sport: Why Now?” In: “The Legacy of Bosman. Revisiting the relationship between EU law and sport”, T.M.C. Asser Press, 2016.

[12] Commission decision SA.33753 of 18 December 2013, State aid– Spain Real Madrid CF, paras. 41-43.

[13] Commission notice of 9 April 2009 on the enforcement of State aid law by national courts (2009/c 85/01), para.25. See also: Oskar van Maren, “The Real Madrid case: A State aid case (un)like any other?” 11 Competition Law Review 1:104.

[14] Commission notice on the enforcement of State aid law by national courts, para. 72. See also in that regard Case C-174/02, Streekgewest, ECLI:EU:C:2005:10, para. 19.

[15] Tribunal Superior de Justicia de Madrid - Sección nº01 de lo Contencioso- administrativo - Pieza de Medidas Cautelares- 357/2013 – 01, 31 July 2014, page 5. Disclaimer: This is an unofficial translation by the author of the blog.

[16] Ibid.

[17] Commission Notice on the enforcement of State aid law by national courts, para.70. See also Case C-368/04, Transalpine Ölleitung in Österreich, ECLI:EU:C:2006:644, para. 45. The Court also held that national procedural rules apply “as long as those national rules do not render excessively difficult the exercise of rights conferred by EU law”. In other words, if it is more difficult to get standing under national procedural rules than under EU procedural rules, then EU procedural rules apply.  

[18] Tribunal Superior de Justicia de Madrid - Sección nº01 de lo Contencioso- administrativo - Pieza de Medidas Cautelares- 357/2013 – 01, 31 July 2014, page 5.

[19] Ibid, page 6.

[20] Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules fort the application of Article 108 of the Treaty on the Functioning of the European Union, Article 16(3).

[21] Tribunal Superior de Justicia de Madrid - Sección nº01 de lo Contencioso- administrativo – Procedimiento Ordinario 371/2013, 2 February 2015, page 10.

[22] Ibid, page 9.

INTRODUCTION

Almost a year after their announcement, the new FIFA Regulations on working with Intermediaries (“FIFA Regulations”) came into force on 1 April 2015. Their purpose is to create a more simple and transparent system of regulation of football agents. It should be noted, however, that the new FIFA rules enable every national football association to regulate their own system on players’ intermediaries, provided they respect the compulsory minimum requirements adopted. In an industry that is already cutthroat, it thus remains to be seen whether FIFA’s “deregulation” indeed creates transparency, or whether it is a Pandora’s Box to future regulatory confusion.

This blog post will provide an overview of the new FIFA Regulations on working with intermediaries and especially its minimum requirements. Provided that national associations are encouraged to “draw up regulations that shall incorporate the principles established in these provisions”[1], three different national regulations have been taken as case-studies: the English FA Regulations, the Spanish RFEF Regulations and the Brazilian CBF Regulations. After mapping their main points of convergence and principal differences, the issues that could arise from these regulatory differences shall be analyzed.  

FIFA REGULATIONS ON WORKING WITH INTERMEDIARIES

The objective of the new Regulations, as explained in a blog dated from 3 July 2014, is no longer to regulate access to the activity of players’ agents (now ‘intermediaries’), but to provide a framework for a better control of the activity itself by establishing minimum standards and requirements and by installing a transparent registration system.[2]

The most significant change is that FIFA introduced a provision recommending to cap the maximum remuneration an intermediaries should derive from an individual transfer. Article 7(3) holds that the maximum commission payable to an intermediary should be 3% of the player’s basic gross income (regarding an employment contract) or 3% of an eventual transfer fee (transfer agreement). Additionally, FIFA prohibits any payment when the player concerned is a minor. These two restrictions have triggered a complaint of the AFA (UK Association of Football Agents) before the European Commission. Moreover, in Germany, the company Rogon Sport Management challenged the new DFB regulations for intermediaries and won a partial victory in a preliminary ruling of the Regional Court of Frankfurt.[3] They argue that these regulations could lead to an infringement of the competition law. This issue will be developed in a different blog post later this week.

Another minimum requirement set by FIFA is the obligation for all intermediaries to submit an Intermediary Declaration (Annex 1 and 2 FIFA Regulations) to the relevant association. This is due each time an individual or a company wishes to be registered as an intermediary with a national association, and also in order to register a transaction in which he acts on behalf of a player or a club. By signing the Declaration, the intermediary is supposed to be bound to the FIFA Regulations, in addition to the regulations of every confederation and association to which he is contractually related.

Furthermore it is stipulated that legal persons can also be considered ‘intermediaries’ under the new Regulations.[4] However, they do not provide any criteria defining how the national associations are required to register the legal persons acting as intermediaries.

The FIFA Regulations prohibit any payment to the intermediary in connection with a transfer compensation (other than the commission established in the Article 7(3)), training compensation and solidarity contributions. Moreover, in accordance with provision 7(4) of the FIFA Regulations, no compensation can be based on the future transfer value of a player.

Another compulsory prerequisite at stake is that the intermediary ought to be registered with the association where he desires to provide his services prior to initiate any activity (Article 3(1) FIFA Regulations). As will be highlighted below, this provision has important practical consequences. Finally, FIFA no longer claims jurisdiction over disputes that could arise between intermediaries and their clients or other intermediaries. It entrusted the national associations to deal with these kind of disputes. The national associations shall establish proper dispute resolution mechanisms to hear these disputes.   

NATIONAL REGULATIONS ON WORKING WITH INTERMEDIARIES

With the objective of analysing how the different associations have implemented the new intermediaries’ system, three different national regulations will be compared: The FA Regulations on Working with Intermediaries, the RFEF (Spain) Regulations and the CBF (Brazil) Regulations. 

1. The FA (England)

The FA was the first association to publish new provisions regulating intermediaries (”FA Regulations”). It should be pointed out that the new FA Regulations are to a large extent similar to the former FA Agents Regulations. For example, the assignment or subcontracting services or duties, the definition of interest, the dual representation standards and the payment to the intermediary by the club on the player’s behalf as a taxable benefit were already included in the former FA Agents Regulations. 

Nevertheless, it is surprising that the FA Regulations do not require the intermediary to submit an Intermediary Declaration, even though it is a mandatory requirement imposed by the FIFA regulations. As stated above, national associations, such as the FA, are required to implement and enforce these minimum standards/requirements. It is not excluded that FIFA, based on Article 10 FIFA Regulations, will “take appropriate measures if the relevant principles are not complied with”.

The FA prescribes that all intermediaries are to undertake the so-called ‘Test of Good Character and Reputation for Intermediaries’. By undertaking this ‘Test’, the intermediary is asked to demonstrate his impeccable reputation and declares that he has not been convicted for any offence related to his services as an intermediary.

The individual who wishes to register himself as intermediary with the FA will have to pay a registration fee of £500 (around 690 €) for the first registration. However, this fee is waived to those who were already ‘FA Registered Agents’ on 31 March 2015. Instead, in order to remain registered as an intermediary, an annual renewal fee of £250 (around 345 €) will de be due.

Additionally, if the intermediary wishes to act on behalf of minors, he must obtain a specific authorisation from the FA. He will need to provide the FA with the ‘Disclosure and Barring Service check’ (CRB check), which enables in the UK to make better informed recruitment decisions by identifying candidates who may be unsuitable for certain work, especially involving children, or an equivalent for non-English intermediaries. Moreover, regulation B8 FA Regulations prohibits any approach to, or enter into an agreement with, a player before the start of the calendar year in which he turns 16.

Out of the three national associations analysed, the FA is the only association that has provisions regarding the existing representation contracts lodged with the FA before 1 April 2015. These contracts have to be resubmitted to the FA within 10 days of the intermediary registering with the FA.

For the purpose of the representation contracts between a player and an intermediary the maximum length will be two years (regulation B10).

With respect to legal persons, the FA Regulations impose the obligation to register the company/partnership by an individual already registered as an intermediary. Moreover, any individual carrying out intermediary activities on behalf of a legal person must be registered as well.[5]  

Lastly, the FA adopted the same wording as FIFA in relation to the 3% recommendation (C11 FA Regulations). However, the English football association also published a statement (‘Intermediaries Guidance Notes’) indicating that this ‘recommendation’ is non-binding and that clubs and players are free to remunerate intermediaries as they wish. It is clear that this provision could generate doubts regarding the amount of the compensation that the intermediary is entitled to. In fact, the 3% recommendation is significantly lower than the 5-10% commission rates that licensed agents tended to receive[6]. However, with this statement, the FA is not precluding an intermediary and his client to agree on a percentage higher than 3%.

2. RFEF (Spain)

As far as the RFEF (Spanish association) Regulations on working with Intermediaries (“RFEF Regulations”) are concerned, they are the most in line with the FIFA Regulations as compared to the FA and CBF Regulations. The Intermediary Declarations are attached as Annex 1 and 2 at the end of the Regulations.  The registration fee for the first registration as an intermediary in Spain is 861 €. Registration has to be renewed on a yearly basis. However, it is yet unknown what the exact costs will be for renewing the registration. Similar to the FA’s ‘Test of Good Character and Reputation’, the RFEF provides a ‘Code of Ethics’ (Annex 3), which has to be signed by the applicant. Furthermore, the maximum length of a representation contract between a player or a club and an intermediary is two years.[7] Although the maximum length of contracts in England is also two years, it should be kept in mind that the FA Regulations only refer to contracts between intermediaries and players, not between intermediaries and clubs.

The most controversial aspect of the Spanish Regulations is the way that the Registration Procedure (Article 4) is designed. The steps for becoming a RFEF Intermediary are summarized as follows:

1. The potential intermediary has to provide a written request addressed to the RFEF General Secretariat (“Secretaría General”).

2. After the application is declared admissible, the RFEF will grant the individual the status of “Applicant”. Subsequently, the RFEF will convoke the applicant for an interview and decides whether the Applicant is ‘suitable to advice’ clients on the football market.   

3. If the outcome of the interview is positive, the Applicant must provide the following documents: ID, VAT number (for legal persons), two pictures, CV, Intermediary Declaration, the payment of the Registration Fee, return the former agent license (if any) and the Code of Ethics. 

Another interesting point is that the Spanish Regulations do not provide any information on the intermediary’s remuneration. Bearing in mind that FIFA recommends the remuneration to be 3%, it will be interesting to see the consequences of the RFEF’s decision to disregard this recommendation.

This could be understood as an implicit challenge to the ‘3% recommendation’. In practice, this omission has similar consequences than the solution adopted by the English FA. In short, FIFA’s recommendation is treated as a soft advise rather than a binding legal standard.

3. CBF (Brazil)

The CBF (Brazilian association) Regulations on Working with Intermediaries (“CBF Regulations”), were approved on 24 April 2015. In order to be registered as an intermediary, the individual must provide the Intermediary Declaration attached in Annexes 1 and 2 to the Regulations. The registration fee has not been published yet. The applicant should also deliver a declaration stating that he has neither conflicts of interest nor a criminal record. Moreover, the potential CBF intermediary is required to take out a professional liability insurance for the amount of 200,000 ‘reais’ (around 60,000 €). Thus, the CBF, taking advantage of its right to ‘go beyond’ the minimum requirements imposed by FIFA, has introduced a feature of the former Agents Regulations that the new FIFA Regulations had abandoned, i.e. the professional liability insurance.[8]

Following the line of the FA and the RFEF, the Representation Contract shall not last more than “24 months” (Article 11(3)). Given that the Regulations do not state whether it refers to contracts with players or clubs, it can be inferred that all parties are subject to this restriction. On the other hand, the CBF prohibits in article 11(2) to extend the Representation Contract tacitly, a renewal in writing is necessary.

The remuneration of the intermediary is regulated in the same way as in the FIFA Regulations, except for one detail concerning the transfer fee: in Brazil, the remuneration, which should not exceed 3%, amount must be calculated on the basis of the “possible basic gross income for the entire duration of the relevant employment contract” (article 19.III), instead of a share of the transfer fee as envisaged by the FIFA, RFEF or FA Regulations.

Finally, Article 4 expands the scope of application of these regulations to ‘international activities’, specifically “operations regarding the negotiation of an employment contract or players’ transfer which have effect in a different national association”. By means of this Article, an operation which takes place out of the CBF jurisdiction has to be registered by the ‘CBF Intermediary’ with the CBF. As a consequence, the CBF Intermediary must register the operation with two federations: first, the national association where the operation takes place, and second, the CBF, where the only connection is the intermediary. 

Table providing an overview of the main requirements stipulated by the FIFA, FA, RFEF and CBF Regulations

 CONCLUSION

The mandatory registration requirement for intermediaries with the relevant national association, as stipulated by the FIFA Regulations, the FA Regulations, the RFEF regulations and the CBF Regulations, leave room for a wealth of legal uncertainties that will need to be clarified by football’s governing bodies and the various courts (and also the EU Commission) called to pronounce themselves on those regulations.  Specifically, should an intermediary register himself with every single association where he is supposed to act on behalf of his clients? What would happen if on 31 August (summer transfer window deadline) a Spanish club calls him to sign one of his players and he is not registered in Spain as an intermediary?

Furthermore, every association has a registration fee to satisfy prior to the registration of around 500 €. Taking into account the international dimension of football and its transfer market, it could well be necessary for an intermediary to register himself with a dozen of associations simply to carry out his profession effectively. As a result, he would have to spend roughly 6.000 € in registration fees on a yearly basis.  

Subsequently, this could lead to an increase of the number of corporations, which provide intermediary services. Indeed, the recourse to a transnational agency employing a number of intermediaries registered with different national associations would be a very efficient way to tackle this problem. Thus, at medium long-term, at least at the international level, the new system will probably not generate the chaos that some authors are predicting. In fact, rather than opening the market to everyone, these requirements could well be a barrier of entry for many intermediaries and might trigger a consolidation of the market in a smaller number of bigger players. This has bad sides, less competition, and good sides, more sophisticated players more likely to provide quality services and to care about their long-term reputation. In short, we predict that only the main ‘cowboys’ in the ‘wild west’ will be able to play by the new rules of the game for football intermediaries.

[1] Nick de Marco, “The new FA Intermediaries Regulations & disputes likely to arise”, available at lawinsport.com, 31 March 2015.

[2] Daniel Lowen, ‘A Guide To The FA’s Regulations on Working with Intermediaries’ www.lawinsport.com, 17 February 2015.

[3] Handelsblatt, “Gericht gibt Spielervermittler teils recht”, 30 April 2015.

[4] See FIFA Regulations on Working with intermediaries: Definition of an intermediary, page 4

[5] Appendix II FA Regulations

[6] UEFA ‘Club Licensing Benchmarking Report 2012’, page 54. http://www.uefa.org/MultimediaFiles/Download/Tech/uefaorg/General/02/09/18/26/2091826_DOWNLOAD.pdf

[7] Article 8(4) RFEF Regulations

[8] Article 5(e) CBF Regulations