Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

The EU State aid and Sport Saga – A blockade to Florentino Perez’ latest “galactic” ambitions (part 1)

This is the first part of a blog series involving the Real Madrid State aid case.

Apart from being favoured by many of Spain’s most important politicians, there have always been suspicions surrounding the world’s richest football club regarding possible financial aid by the Madrid City Council. Indeed, in the late 90’s a terrain qualification change by the Madrid City Council proved to be tremendously favourable to the king’s club. The change allowed Real Madrid to sell its old training grounds for a huge sum. Though the exact price for the grounds remains unknown, Real Madrid was suddenly capable of buying players like Figo and Zidane for record fees. However, the European Commission, even though agreeing that an advantage was conferred to the club, simply stated that the new qualification of the terrain in question does not appear to involve any transfer of resources by the State and could therefore not be regarded as State aid within the meaning of article 107 TFEU.

Agreements between the club and the Council have been a regularity for the last 25 years.  A more recent example concerns an agreement signed on 29 July 2011 (Convenio29-07-2011.pdf (8MB). More...

UEFA Financial Fair Play Regulations Put PSG and Manchester City on a Transfer Diet

The main lesson of this year’s transfer window is that UEFA’s Financial Fair Play (FFP) rules have a true bite (no pun intended). Surely, the transfer fees have reached usual highs with Suarez’s move to FC Barcelona and Rodriguez’s transfer from AS Monaco to Real Madrid and overall spending are roughly equal to 2013 (or go beyond as in the UK). But clubs sanctioned under the FFP rules (prominently PSG and Manchester City) have seemingly complied with the settlements reached with UEFA capping their transfer spending and wages. More...

Right to Privacy 1:0 Whereabouts Requirement - A Case Note on a Recent Decision by the Spanish Audiencia Nacional

On the 24th June 2014 the Spanish Audiencia Nacional issued its ruling on a hotly debated sports law topic: The whereabouts requirements imposed to athletes in the fight against doping. This blog aims to go beyond the existing commentaries (here and here) of the case, by putting it in the wider context of a discussion on the legality of the whereabouts requirements. More...

The Rules of the Electoral Game for the FIFA 2015 Presidential Elections

After the success of this year’s World Cup in Brazil, FIFA President Sepp Blatter can start concentrating on his Presidential campaign for next June’s FIFA elections. Even though the 78-year old Swiss is not officially a candidate yet, he is still very popular in large parts of the world, and therefore the favourite to win the race. Nonetheless, even for the highly experienced Mr. Blatter these elections will be different. All candidates will have to respect the newly introduced Electoral Regulations for the FIFA PresidencyMore...

Can (national or EU) public policy stop CAS awards? By Marco van der Harst (LL.M, PhD Candidate and researcher at the AISLC)

Introduction[1]

The Court of Arbitration for Sport (CAS) registers approximately 300 cases every year. Recently, the Swiss Federal Supreme Court – which is the sole judicial authority to review arbitral awards rendered in Switzerland – reminded in the Matuzalém Case (Case 4A_558/2011) that CAS awards may be enforced in other States that are parties to the New York Convention on the recognition and enforcement of foreign arbitral awards.More...

Chess and Doping: Two ships passing in the Night? By Salomeja Zaksaite, Postdoctoral researcher at Mykolas Romeris University (Lithuania), and Woman International Chess Master (WIM)

It may come as a surprise to laymen, but chess players are subjected to doping testing. Naturally, then, the questions follow as to why they are tested, and if they are really tested (at least, with a level of scrutiny comparable to that which physically-oriented athletes are regularly subjected). More...

The International Sports Law Digest – Issue I – January-June 2014 (by Frédérique Faut)

The International Sports Law Digest will be a bi-annual post gathering recent material on International and European Sports Law. This is an attempt at providing a useful overview of the new, relevant, academic contributions, cases, awards and disciplinary decisions in the field of European and International Sports Law. If you feel we have overlooked something please do let us know (we will update the post).

Antoine Duval More...


A Short Guide to the New FIFA Regulations on Working with Intermediaries

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. More...

Cannibal's Advocate – In defence of Luis Suarez

Luis Suarez did it again. The serial biter that he is couldn’t refrain its impulse to taste a bit of Chiellini’s shoulder (not really the freshest meat around though). Notwithstanding his amazing theatrical skills and escaping the sight of the referee, Suarez could not in the information age get away with this unnoticed. Seconds after the incident, the almighty “social networks” were already bruising with evidence, outrage and commentaries over Suarez’s misdeed. Since then, many lawyers have weighed in (here, here and here) on the potential legal consequences faced by Suarez. Yesterday FIFA’s disciplinary committee decided to sanction him with a 4 months ban from any football activity and a 9 International games ban. In turn, Suarez announced that he would challenge the decision[1], and plans on going to the Court of Arbitration for Sport if necessary[2]. Let’s be the advocates of the cannibal!More...

Blurred Nationalities: The list of the “23” and the eligibility rules at the 2014 FIFA World Cup. A guest Post by Yann Hafner (Université de Neuchâtel)

In 2009, Sepp Blatter expressed his concerns that half of the players participating in the 2014 FIFA World Cup would be Brazilians naturalized by other countries. The Official list of Players released a few weeks ago tends to prove him wrong[1]. However, some players have changed their eligibility in the past and will even be playing against their own country of origin[2]. This post aims at explaining the key legal aspects in changes of national affiliation and to discuss the regulations pertaining to the constitution of national sides in general[3]. More...

Asser International Sports Law Blog | The Impact of the new FIFA Regulations for Intermediaries: A comparative analysis of Brazil, Spain and England. By Luis Torres

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

The Impact of the new FIFA Regulations for Intermediaries: A comparative analysis of Brazil, Spain and England. By Luis Torres

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

 

FIFA

FA

RFEF

CBF

Intermediary Declaration

Yes

No

Yes

Yes

 

Test of Good Character (or similar)

No

Yes

Test of Good Character and Reputation for Intermediaries (FA form)

Yes

Code of ethics (Annex 3)

No

 

Registration Fee

No

Yes

-£500 (690 €)

-£250 (345 €): the following renewals

Yes

-861 €: 1st year

-Could change the following years

 

-unknown-

Interview and other additional documents

No

Yes

‘Declarations, Acknowledgments and Consents’ Form

Yes

Written request, Interview, 2 photos, CV.

Yes

Criminal record, copy professional liability insurance.

Maximum years Representation Contract with Player

No

Yes

2 years

Yes

2 years

Yes

2 years

3% remuneration recommendation

Yes

Yes

No

Yes, but on the future wage of the player


 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

Comments (2) -

  • Marc Peltier

    5/11/2015 4:03:54 PM |

    Interesting article on the new rules. In France, we have a national legislation which is different from FIFA rules. You still have to pass an exam to get a license in order to be authorized to work as an agent.
    Marc Peltier
    Associate professor
    University of Nice Sophia-Antipolis

  • Gerald Ibeh.

    2/28/2017 10:48:30 AM |

    please how much is required to register a company to act as intermediary in Netherland,Germany,Italy,france,portugal & England.if possible i need a breakdown & requirements of registering a company to act as intermediary in all Uefa member associations.

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