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TEASER

Michele Colucci (ed.)

Michele Colucci (ed.)
G.L. Acosta Perez, B. Al Hamidani, S. Alobeidli, L. Andreotti Paulo de
Oliveira, K. Antoniou, M. Auletta, O.D. Bellia, M. Bieniak, R. Branco
Martins, S. Civale, M. Colucci, K. Damjanovic, R. de Buen Rodríguez,
J. de Dios Crespo Pérez, D. Demirel, S. Dong, I. Elizarova, T. Gábriš,
P. Garcia Correia, T. Giannikos, C. Giraldo, H. González Mullin,
L. Hadjidemetriou, F. Hendrickx, M. Hristova, V. Iveta, D. Jankowitz,
K.L. Jones, D. Koolaard, O. Knudsen, P. Lombardi, D. Lowen,
I. Lukic, Y. Mabuchi, K. Machnikowski, J.M. Marmayou,
T. Matsumoto, E. Mazzilli, M. Procházka, N. R. Rustamzade, E. Ripoll
González, V. Smokvina, A. Soldner, A. Sotir, G. Tatu, M. Tenore,
L. Tettamanti, M. Vanhegen, W. van Megen, F. Vásquez Rivera,
T. Yamazaki.

TABLE OF CONTENTSNOTE ON THE AUTHORS .................................................................
INTRODUCTION
by Michele Colucci….......................................................................

11
19

SECTION I_________________________________________________________________ANALYSISBELGIUMby Frank Hendrickx and Miet Vanhegen........................................... 165

BRAZILby Leonardo Andreotti Paulo de Oliveira….................................... 181

BULGARIA
by Mila Hristova.............................................................................. 191

CHINA
by Shaun Dong............................................................................... 199

The FIFA Regulations on Working with Intermediaries
by Paolo Lombardi...........................................................................

23

COLOMBIA
by César Giraldo

The Intermediaries’ perspectives
by Roberto Branco Martins..............................................................

41

CROATIAby Vanja Smokvina and Vladimir Iveta

The Clubs’ point of viewby Ornella Desirée Bellia.................................................................

57

The Players’ point of view
by Wil van Megen.............................................................................

67

EU law and principles applied to FIFA Regulations
by Jean-Michel Marmayou...............................................................

75............................................................................

209
219

...............................................................

235

CZECH REPUBLIC
by Martin Procházka .........................................................................

251

DENMARKby Ole Knudsen...............................................................................

263

FIFA Regulations from the taxation “corner”
by Mario Tenore............................................................................... 113

ENGLAND
by Daniel Lowen.............................................................................. 271

SECTION II_________________________________________________________________THE IMPLEMENTATION OF FIFA REGULATIONS - COUNTRY REPORTS

FRANCEby Jean-Michel Marmayou

ARGENTINA
by Martin Auletta
AUSTRIAby Igor Lukic............................................................................. 125...................................................................................

AZERBAIJAN
by Naila R. Rustamzade141.................................................................... 157

TEASER.............................................

CYPRUS
by Loizos Hadjidemetriou

GERMANYby André Soldner............................................................... 287............................................................................. 303

GREECEby Theodore Giannikos.................................................................... 321

ITALY
by Salvatore Civale and Michele Colucci.........................................

329

JAPANby Takuya Yamazaki, Taisuke Matzumoto and Yuki Mabuchi..........................................................................

519........................................................

349

TURKEY
by Dilara Demirel...........................................................................

533

THE NETHERLANDS
by Dennis Koolaard.........................................................................

357

UKRAINEby Anton Sotir................................................................................

543

PARAGUAY
by Gerardo Luis Acosta Perez

381

UNITED ARAB EMIRATES
by Saleh Alobeidli..........................................................................

559..................................

387

URUGUAYby Horacio González Mullin and Felipe Vásquez Rivera................

567.................................................................

395

USA
by Karen L. Jones..........................................................................

577

MEXICO
by Ricardo de Buen Rodríguez

.........................................................

POLANDby Michal Bieniak and Karol Machnikowski
PORTUGAL
by Pedro Garcia Correia............

QATAR
by Ettore Mazzilli and Konstantinos Antoniou..................................

423

ROMANIAby Geanina Tatu.............................................................................

437

RUSSIAby Inna Elizarova............................................................................

453

TEASER

339

SWITZERLAND
by Luca Tettamanti

SECTION III_________________________________________________________________COMPARATIVE ANALYSISThe FIFA Regulations on Working with Intermediaries: a comparative
analysisby Michele Colucci........................................................................

591

463

SECTION IV_________________________________________________________________
ANNEXES

471

Annexe I
The FIFA Regulations on Working with Intermediaries

SLOVAK REPUBLIC
by Tomáš Gábriš
.............................................................................

487

Annexe II
FIFA Circular n° 1519 of 11 january 2016

SOUTH AFRICA
by Diederick Jankowitz

503

Annexe III
Comparative table on implementing measures509

Annexe IV
Links to the national regulations

SAUDI ARABIA
by Bandar Al Hamidani
SERBIAby Ksenija Damjanovic..................................................................
...................................................................

...................................................................

SPAIN
by Juan de Dios Crespo Pérez and Enric Ripoll González................

.......................

615..........................................

627...................................

629.......................................................

639

INTERNATIONAL SPORTS LAW AND POLICY BULLETIN 1/2016

12

Affairs Manager of a football club in the Italian top division, and as a legal consultant insome of the most renowned law firms worldwide, having gained professional experience inseveral countries (UK, Spain, Italy, Brazil and Switzerland). Ornella is lecturer in Sports
Management and Sports Law Masters in Italy and Spain, she is author of several
publications in specialized journals and books, guest speaker at international events in
Europe and the US. As Head of Legal Affairs of the EPFL, she is in charge of all the legal
issues involving the interests of the European Leagues at international level.

NOTE ON THE AUTHORS
Gerardo Luis Acosta Perez, Lawyer. Master in Law, Economics and Management of Sport(University of Limoges – France), Master in Sport Law (University of Lleida – Spain),
Executive Master in Management for Sports Organizations – MEMOS (University ofLouvain – Belgium), Academic Director of the Master in Management of Sport (National
University of East – Paraguay), Professor in Sport Law (National University of Asunción– Paraguay), Arbitrator in the Football CAS list. Author of several publications on
International and national Sports Law.

Saleh Alobeidli, Sport Lawyer and the Founder of the First Sports Law Firm in the Middle
East “Saleh Alobeidli Advocates & Legal Consultants”. He is a licensed advocate before
all courts in the UAE including the High Court and the DIFC Court. He is a CAS arbitrator
as well as a member of the Legal Committee at the AFC.
Leonardo Andreotti Paulo de Oliveira, Doctoral student in Law in Universidad Rey Juan
Carlos – Madrid. Master in Sports Law and Specialist in Contract Law. President of Brazilian
Institute of Sports Law. Professor and Academic Coordinator of Post Graduate in Sports
Law at Escola Superior de Advocacia – São Paulo/Brazil, Professor at LL.M in InternationalSports Law of ISDE – Madrid/Spain, Professor at Master de Gestión Desportiva de FIFA/
CIES/RFEF/URJC and at Master in Diritto e Organizzazione Aziendale dello Sport, at Sports
Law and Policy Centre – Rome/Italy. Attorney-at-Law. Arbitrator.
Konstantinos Antoniou, Greek lawyer specialized in Sports Law and International
Arbitration. After working in the leading sports law firm of Mr. Sofoklis Pilavios in Athensfor 5 years, he joined the Qatar Football Association since July 2010 and is currently amember of the Legal Department of the Qatar Football Association in his role as Legal
Advisor.
Martin Auletta, Lawyer and Partner of Auletta & Asociados – Abogados (Buenos Aires,
Argentina). International Master in Sports Law and Sport Management (ISDE-Iusport).
Diploma in Sports Law, Sports Administration and Sports Management (Postgraduate
School of Buenos Aires Bar). Sports Law Professor. Member of AIAF (International
Association for Football Lawyers) and ALADDE (Latin American Sports Law Association).
Ornella Desirée Bellia, Head of Legal Affairs at the EPFL (Association of European
Professional Football Leagues), LL.M. in International Sports Law (ISDE), Negotiationand Leadership Diploma from Harvard Law School. Ornella previously worked as Legal

Michal Bieniak, Attorney-at-law, kancelaria-bieniak.pl. Doctor of Law since 2007. He is
author of many scientific publications in the field of law of obligations, contract law, civil
procedure, bankruptcy and reorganization law, and economic criminal law. His advice isfocused mainly on issues of company law, procedural law (corporate disputes, debt,
managerial crime), and restructuring (bankruptcy proceedings, acquisitions of companies
and of organized parts of companies in bankruptcy proceedings, transformation and mergerof companies).

TEASER

Bandar Al Hamidani, LLM, LLB, Diploma in International Sports Law, is a Saudi licensed
lawyer and arbitrator in the Riyadh, office of Al Tamimi & Company, the largest law firm in
the Middle East. Bandar advises on Saudi Sports Law issues with a focus on laws andregulations relating to Professional Football. Bandar assisted with the drafting of Saudi
Arabia’s previous SAFF Players’ Agents Regulations and has drafted and advised onother Professional Football Regulation. He is a member of the disciplinary committee ofSAFF and a member of International Association of Sports Law (IASL).

Note on the Authors

Roberto Branco Martins, (PhD) is the co-founder of the Dutch Agent Association Pro
Agent and of the recognized (EC) representative of players’ agents in Europe, the European
Football Agents Association (EFAA). Currently he is the general counsel for bothorganisations. He is a practising lawyer registered at the Amsterdam bar and he is alecturer at the University of Amsterdam where he developed the courses International andEuropean Sports Law and Labour law and sport. He is a Visiting Associate of the Edge Hill
Centre for Sports Law Research.
Salvatore Civale, Founding and Managing Partner of the Law Firm “Studio Civale” andPresident of the Italian Sports Lawyers Association. Arbitrator of the European Handball
Federation Court of Arbitration (ECA), lecturer and author of publications related to Sports
Law.
Michele Colucci, Scientific Director of the Sports Law and Policy Centre and Honorary
President of the Italian Sports Lawyers Association.
Ksenija Damjanovic, graduated from the Faculty of Law on Belgrade University andcompleted UEFA Football Law Programme. She has managed to combine business andpleasure by working in the law office Damjanovic, the first Serbian law firm specializing insports law.
Ricardo de Buen Rodríguez, Founding and Managing Partner of the Law Firm de Buen
Rodríguez Abogados, S.C., Mexico City. Member of the Court of Arbitration for Sport
since 2002. Professor of Labour and Sports Law in several Universities in Mexico andabroad (ISDE – Madrid). Member of Rex Sport, Ilustre y Nacional Colegio de Abogados deMéxico, and Association Internationale Des Avocats du Football.
Juan de Dios Crespo Pérez, Founding Partner of the firm Ruiz-Huerta & Crespo, specialistin sports and EU and international law. Arbitrator of the Valencia Chamber of Commerce aswell as in proceedings at the ICC of Paris. Lecturer in seminars and masters of Sport Law
in more than 30 countries. He has published more than 125 legal articles and 14 books inNote on the Authors

International Sports Law and Policy Bulletin 1/2016

Dilara Demirel, Turkish Football Federation Legal Department, Lawyer.

Loizos Hadjidemetriou, a Cyprus based lawyer since 2005 having studied LLB Law and
LLM Commecial Law at the University of Derby in England and graduate of the 2015
Global Executive Master in International Sports Law of the ISDE University in Madrid,currently serving as the Legal Consultant of the Cyprus Footballers’ Union and Disciplinary
Prosecutor of the Cyprus Basketball Association.

Shaun Dong, Partner of Beijing Great Wall Law Office and founder of China Sports & Law
Research Center.

Frank Hendrickx, Professor of labour law and sports law at the Law Faculty of the
University of Leuven (Belgium).

Inna Elizarova, graduate of the Law faculty of Kazan Federal University in Russia; she
received her Master’s degree from the Technical University of Munich, Germany. For
several years she has worked in the field of sports law for the Fund promoting thedevelopment of physical culture and sport in the Republic of Tatarstan, Russia, and as alegal consultant for the Football Club Rubin Kazan.

Mila Hristova, Deputy Secretary General at the Association of Bulgarian footballers.

sports law related matters. Arbitrator of the European Handball Federation (ECA) andmember of ALADDE (Latin American Association of Sports Law) and Member of theAIAF, UIA, BASL as well as the IASL, LL.M. ISDE (H.C.).

Pedro Garcia Correia, Founding and Managing Partner of the Law Firm “CSA - Correia,
Seara, Caldas, Simões and Associate”. Post-Graduated in Labour Law and in Finance and
Law in Sports, both by the Faculty of Law of the University of Lisbon, Portugal. As a
Lawyer, he provides juridical assistance to professional leagues, clubs, football players
and intermediaries.
Theodore Giannikos, Attorney at Law-LLM. Vice-President and Head of Legal Affairs of
Olympiacos FC. He is member of the Executive Board of ECA, of the UEFA CCC, FIFA DRC
and a Lead Judge for Minor Transfers and a CAS arbitrator.
César Giraldo, Attorney at Law (Universidad de los Andes) with postgraduate degrees in
Financial Law (Universidad del Rosario), and LLM in International Sports Law (ISDE).
Founding Partner of GHER & Asociados Abogados, law firm located in Bogotá (Colombia).
Sports Law professor at Universidad Sergio Arboleda and President of “Asociación
Colombiana de Derecho Deportivo-ACODEPOR”. Author of articles and guest speaker atnational and international conferences related to Sports Law.
Horacio González Mullin, Main Partner and Director of the Sports Law Department of“González Mullin, Schickendantz & Asociados” law firm in the Oriental Republic of Uruguay.
Coordinator and Professor of Sports Law certification program at Universidad Católica del
Uruguay. Member of the Latin American Sports Law Association (ALADDE) and of theInternational Association for Football Lawyers (AIAF). – Member of the Editorial Boardof the International Journal dedicated to footbal law “Football Legal,” based in Cenon,
France. Author of the book “Manual Práctico de Derecho del Deporte. – Con especial
atención al Derecho del Fútbol,” published by Amalio Fernández Publishing house in
November 2012. – Author of several articles and speaker at national and international
Seminars and Conferences related to the subject matter.

Diederick Jankowitz, advocate (Barrister) of the High-Court of the Republic of SouthAfrica and a member of the General Bar Society of South-Africa with Chambers in Kimberley,South-Africa.

TEASER

Tomáš Gábriš, Attorney-at-law and Associate Professor at the Comenius University in
Bratislava, Faculty of Law, Slovak Republic. Arbitrator of the Dispute Resolution Chamberof the Slovak Football Association, member of the Legislative Committee of the Slovak
Football Association, member of the Scientific Committee of the think tank Sport andCitizenship (France), member of the International Association of Sports Law.

Vladimir Iveta, Secretary of the Croatian Football Federation (CFF).

Karen L. Jones, JD, MA, Owner and consultant at Mission2Transition(www.mission2transition.com) providing management, operations and legal support
services and virtual coaching to small and mid-sized businesses. Adjunct faculty at John
Marshall Law School (Chicago, IL) teaching a summer course in International andComparative Sports Law, in the International Business & Trade Law program. Also,
Amsterdam University of Applied Sciences (Amsterdam, The Netherlands) teachingcourses in Legal Aspects of Sports in the International Sports Management & Business(ISM&B) program.
Dennis Koolaard, Attorney-at-Law at De Kempenaer Advocaten in Arnhem, theNetherlands, Ad hoc Clerk with the Court of Arbitration for Sport and guest lecturer atvarious universities and institutions in the Netherlands and abroad.
Ole Knudsen, Legal Advisor of Danish League. The Author wishes to thank Jes CristianFisker, Assistant Attorney, from the DBU and Claus Christensen, CFO of Silkeborg IF andmember of the DBU Law Committee for providing information from the implementation
process.
Paolo Lombardi, Managing Director and founder of Lombardi Associates, a leading UKbased football advisory business. Paolo previously worked for FIFA from 2002 to 2010,
gaining significant experience in disputes arising from transfers of players and serving as
Deputy Head of the FIFA Players’ Status department. Paolo then became Head of FIFA
Disciplinary and Governance, holding responsibility for disciplinary, doping, football
governance and ethics-related issues.
Daniel Lowen, Partner, Couchmans LLP. He is an experienced commercial and regulatory
sports lawyer, advising clients across the sports industry on a wide range of issues, fromplayer transfers and commercial opportunities through to disciplinary and contentious
matters. The UK edition of Chambers & Partners 2016 remarks that, “In addition to a
thriving regulatory and disciplinary practice, Daniel is recognised for his standing inNote on the Authors

International Sports Law and Policy Bulletin 1/2016

Vanja Smokvina, PhD, is an Assistant Professor at the Faculty of Law, University of
Rijeka, Croatia, and a Visiting Research Associate at the Edge Hill University, Centre forSports Law Research, UK. He is an arbitrator of the Court of Arbitration of the Croatian
Football Federation.

the football market... he boasts exceptional knowledge of the rules surrounding theactivities of intermediaries”.
Igor Lukic, Trainee Lawyer in Austria with the specialisation in Labour Law and Sports
Law and a PhD in in “Sports and Law” at the University of Innsbruck, writing about
professional football players’ contracts under Austrian, German and Italian Law.

André Soldner, LL.M. (Nottingham/UK) is a lawyer at Klinkert Rechtsanwälte (Frankfurt
am Main/Germany). He is specialised in sports law and has, inter alia, profound legal
expertise in relation to national and international player transfers. Speaker and author ofseveral publications on sports law.

Yuki Mabuchi, JFA Registered Intermediary, CEO, Imagent, Inc.
Karol Machnikowski, LL.M. in International Sports Law, trainee Attorney-at-law,
www.kancelaria-bieniak.pl. He specializes in corporate law, civil law, press law, copyrightlaw, litigation and sports law with regard to sports arbitrage. He advises on mergers,
acquisitions, conversions debt to equity, and transformations. He participates in negotiating
agreements of athletes’ transfers and on their contracts. Entered in the list of international
arbitrators at the European Handball Federation Court of Arbitration.

Taisuke Matsumoto, Attorney-at-Law, Field-R Law Offices (Japan), specializes in Sportslaw (sports business law, publicity law, contract law, etc), Sports arbitration (team selection,
doping, disciplinary decisions, etc) and Sports governance.
Ettore Mazzilli, Italian lawyer specialized in Sports and Entertainment Law. In 1994, he set
up his own law office in Bari (Italy). Besides several other positions, he has worked as
Legal Counsel and Director of Legal Affairs for the Qatar Football Association since
March 2005 as well as he was also appointed as Legal Director for the LOC of the AFC
Asian Cup Qatar 2011. With more than 20 years expertise in international football regulations
and sports law, he has acted as legal counsel for several football clubs and associations
before the relevant sports judicial bodies, whereas he has given several lectures inprestigious masters and has been invited as speaker in seminaries in the international
sports law worldwide.
Martin Procházka, Director of the Sports Department/Lawyer AC Sparta Praha fotbal, a.s.
Naila R. Rustamzade, is an independent sports law expert in Azerbaijan. Naila holds a
Master's degree in International Law (Baku State University), a Master's degree inInternational Relations and Diplomacy (Diplomatic School of Spain), a Master's degree inInternational Sport Law (Instituto Superior de Derecho y Economia (ISDE) - Spain).
Enric Ripoll González, Associate Lawyer of Ruiz-Huerta & Crespo, specialist in Sports
Law and Member of the AEDD (Spanish Association of Sports Law). In 2012 he graduated
Cum Laude in the ISDE International Master in Law and Sport Management. Lecturer at
the Master Program of European Sports Law in the Universidad Rey Juan Carlos (Madrid).

Geanina Tatu, LL.M., Lawyer - Romanian, French and International sports law.

TEASER

Jean-Michel Marmayou, “Maître de conférences” at Aix-Marseille University where heteaches Sports law and European law. Head of the Sports law Centre of Aix-Marseille(www.centrededroitdusport.fr). Member of the Centre for economic law (CDE EA 4224).
Affiliate professor, Kedge Business School. Head of Les Cahiers de droit du sport. Authorof several books on sports law.

Anton Sotir, Consultant at Lombardi Associates (Edinburgh, UK), Partner at GoldenGate
Law Firm (Kyiv, Ukraine), Deputy Chairman of the Dispute Resolution Chamber of theFootball Federation of Ukraine (Kyiv, Ukraine). LL.M. in International Commercial Arbitration
Law (Stockholm University) and LL.M. in International Sports Law (ISDE).

Mario Tenore, Senior associate at Maisto e Associati (Milan office) and member of theInternational Tax Entertainment Group (“ITEG”). He obtained a PHD in tax law (cum laude)from the II University of Naples (Italy) and an LL.M. Degree (cum laude) in international
tax law from the University of Leiden (The Netherlands). One of his areas of expertise istaxation of entertainers and sportspersons (including international transfers, managementof image rights, payments to agents and others).
Luca Tettamanti, Attorney-at-law based in Lugano (CH); Founding Partner of the law firm
LT Sports Law; LL.M. in International Sports Law (ISDE Madrid); Former general manager
of Football Club Lugano SA; Speaker at national and international seminars andconferences; Member of Swiss Association of Sports Law (ASDS), Italian Association ofSports Law (AIAS) and ISDE Alumni.
Miet Vanhegen, Phd researcher at the Law Faculty of the University of Leuven (Belgium).
Wil van Megen, Head of FIFPro’s Legal Department and attorney-at-law with MHZadvocaten in Schiedam, the Netherlands .Legal adviser of VVCS, the Dutch union of
professional football players.
Felipe Vásquez Rivera, Partner and member of the Sports Law Department of “González
Mullin, Schickendantz & Asociados” law firm in the Oriental Republic of Uruguay,
responsible for many cases of national and international Sports Law conflicts; heparticipated in the Sports Law certification program at Universidad Católica del Uruguay;
he collaborated with the book “Manual Práctico de Derecho del Deporte – Con especial
atención al Derecho del Fútbol,” published by Amalio Fernández Publishing house in
November 2012; and he is the author of several articles related to the subject matter.
Takuya Yamazaki, Player Representative Member of the FIFA Dispute Resolution Chamber,
Chairman of FIFPro Division Asia/Oceania, Attorney-at-Law, Founder of Field-R Law
Offices.

INTERNATIONAL SPORTS LAW AND POLICY BULLETIN 1/2016

INTERNATIONAL SPORTS LAW AND POLICY BULLETIN 1/2016

INTRODUCTION

Brussels, 30 November 2016
Michele Colucci

THE FIFA REGULATIONS ON WORKING WITH
INTERMEDIARIES
by Paolo Lombardi*

1.

TEASER

The running FIFA landmark regulations on intermediaries define the intermediary as “anatural 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”.
Now, anyone with a “self-certified” impeccable reputation and no conflict ofinterest may qualify as an intermediary.
Targeting the commonly recognised need of upgrading the transparency in theclose and economically attractive fields of transfer of players and intermediaries’ activities,
FIFA has established a new registration procedure. From now on, clubs and players are
due to submit to their national associations the relevant documents related to the activitiesof their intermediaries. In doing so, the latter must be registered every time they assist
clubs and players in concluding a transaction.
This radical change in FIFA’s approach focuses more on monitoring theintermediaries’ transactions rather than the formalities of their access to the profession as
it was the case before. However, FIFA regulations require national associations drafting
an annual report on the intermediaries’ activities and remunerations. Such obligation has
been further confirmed by the FIFA circular n° 1519 of 11 January 2016.
The updated comparative analysis outlines the FIFA self-constraint in verifying
the national associations’ duties in registering intermediaries as well as their transactions
and reporting to the international association.
The FIFA regulations aim to better protect the integrity of football and theinterests of sports stakeholders. Indeed, footballers engage intermediaries in order towrangle for the best contracts while clubs’ managers rely on them to get the best players
at the best conditions.
In this new legal context, the FIFA rules set minimum standards to be implemented
by the national associations, which are free to adopt even stricter requirements, if theywish so.
Eventually, the variety of local, legal and traditional sports frameworks heads
for various forms and types of implementations of national regulations.
Therefore, the inevitable result is that there is a huge diversity of national
measures to govern the profession’s activity.
As a consequence, therefore, those who are interested in transferring a player
to a given country are obliged to know the relevant intermediaries’ regulations if they do
not want to put at risk the successful outcome of any relevant transfer.
Starting from the latest official figures and statistics concerning the FIFA
regulations, the second edition of this book offers an updated analysis of the implementing
measures in 36 national associations.
Finally, it highlights the still existing discrepancies and their impact on the
sports stakeholders as well as the best national practices.

Introduction

The FIFA Regulations on Working with Intermediaries replace the FIFA Players’
Agents Regulations (2008) (“Agents Regulations”). This was the last set of rules
through which FIFA had regulated the activities of Players’ Agents since theirofficial recognition in the early 1990’s. The need for reform in this area has long
been understood, not least of all by FIFA itself. In this chapter, I will briefly look at
the FIFA Players’ Agents Regulations, and explore FIFA’s understanding of theneed for reform. There will be a detailed review of the Regulations on Working
with Intermediaries (“Intermediaries Regulations”), putting them into the context
of the current international football industry, and I will conclude with an examinationof the main issues coming from the Intermediaries Regulations. It should be noted,
however, that at the time of writing, the new regime has been in force for only
sixteen months. Although all aspects can and will be discussed, many practicaloutcomes, such as dispute resolution, essentially remain untested.

____________________
Paolo Lombardi is Managing Director and founder of Lombardi Associates, a UK-based footballadvisory business as well as a consultant for London-based leading boutique sports law firm
Couchmans LLP. Paolo offers advice on international football regulations to football stakeholders
worldwide including clubs, players, intermediaries, associations, leagues, regulators and investors.
Paolo previously worked for FIFA from 2002 to 2010, gaining significant experience in disputes
arising from transfers of players and serving as Deputy Head of the FIFA Players’ Status department.
Paolo then became Head of FIFA Disciplinary and Governance, holding responsibility for disciplinary,
doping, football governance and ethics-related issues. He was actively involved in drafting FIFA
regulations including the Statutes, the Regulations on the Status and Transfer of Players, thePlayers’ Agents Regulations, the Disciplinary Code, the Code of Ethics and the Anti-Doping
Regulations, and sat in all FIFA Committee meetings relevant to his positions. Paolo has dealt withnumerous high-profile international football disputes and disciplinary cases and regularly representsclients at FIFA, UEFA and the Court of Arbitration for Sport. Paolo is involved as a lecturer in a
number of education and professional development programmes worldwide, and has contributed tovarious publications in his area of expertise. E-mail: paolo@lombardi-football.com.

*

24

Paolo Lombardi

The FIFA Regulations on Working with Intermediaries

25

2.

The FIFA Players’ Agents Regulations

2.2

2.1

Becoming a Players’ Agent

Only upon the conclusion of a representation contract, was an agent properly
permitted to represent a party in negotiations. The contract had to be a written
mandate and could last for up to two years, with any renewal of the contracteffective only with a further written mandate being signed by all parties. An agent
was allowed to represent a minor, with the parents or guardians additionally required
to sign the mandate.
Crucially, the Agents Regulations stipulated that all conflicts of interest
were to be avoided, and under no circumstances could a players’ agent represent
more than one party to the relevant transaction. The constant jurisprudence of theFIFA Players’ Status Committee6 is adamant in indicating that Article 19 par. 8 of
the Agents Regulations was enacted in order to ensure that a players’ agent is not
remunerated twice for the services he renders in the same transaction.

____________________
FIFA Players’ Agents Regulations (2008), Definitions.
FIFA Players’ Agents Regulations (2008) define this to be someone who had never had a criminal
sentence for a financial or violent crime passed against them.
3FIFA Players’ Agents Regulations (2008), Article 6.
4
FIFA Players’ Agents Regulations (2008), Article 4.

2.3

TEASER“Players’ agent: a natural person who, for a fee, introduces players to clubs witha view to negotiating or renegotiating an employment contract, or introduces two
clubs to one another with a view to concluding a transfer agreement, in compliancewith the provisions set forth in these regulations”.1
From this statement, several things are immediately clear. An Agent
could only have been a natural person, acting player to club (representing theplayer in the negotiation of an employment contract), or club to club (assisting aclub to conclude a transfer agreement). As is extrapolated further on in the Agents
Regulations, an agent’s work was solely based on transfer-related activities, and
the Agents Regulations did not cover any other type of work such as image rights,
services to coaches or managers or such like. A corporate entity could not act asan agent, however a corporate entity could support a Licensed Agent to assist in
administration.
To become a Licensed Players’ Agent it was necessary for an individual
to firstly apply to the relevant association in which they resided, showing themselves
to be a person with an “impeccable reputation”.2 The individual could not
simultaneously hold any position at an Association, Confederation, League, or at
FIFA.3 If these basic prerequisite were satisfied, the individual then had to pass anexam, set partly by FIFA, for questions relating to the FIFA Statutes and Regulations,and partly by the association, for questions relating to national subjects. The exam
was administered by the association, although minimum pass marks were set byFIFA. Additionally, the individual had to take out appropriate insurance (or provide
a bank guarantee) and this was subject to control by the association. Once allthese steps had been undertaken, the licence was issued, and the name enteredonto a Licensed Players’ Agent register.
The Agents Regulations allowed for certain “exempt Individuals” torepresent players without being a licensed players’ agent. These were either theparents, siblings or spouse of a player, or a legally authorised practising lawyer,
and any activity undertaken by them would fall outside of the scope of FIFA.4

Representation Contract 5

Remuneration 7

Also included in the representation contract were the details of the agent’s
remuneration. For the representation of a player, the remuneration was calculatedwith direct reference to the annual basic gross salary, including any fixed
remuneration. The amounts could be paid in a lump sum, or in instalments over thecourse of the playing contract (even if this was longer than the representation
contract). If the amount had not been specified in the contract, the Regulations
allowed for a default amount of 3% of the basic salary to be paid to the agent.
An agent representing a club would have the remuneration agreed inadvance and would be paid in a lump sum.
2.4

Rights and Obligations of Players and Clubs

Under the obsolete Agents Regulations, both the Players and the Clubs, whenengaging representation service, were obliged to ensure that the individual engaged
was a fully licensed players’ agent.8 They also were to ensure that the name of
the agent was noted in the employment contract or transfer agreement. If noagent has been used, the agreement should have noted this explicitly.9
The relevant provision of the Agents Regulations clearly provided forthe crucial element of proof: while if the agent’s name and signature appear in thecontract it cannot be denied that the agent took part in the relevant negotiation, if
there is no mention of the agent in the relevant contract the activity may hardly be____________________

1

5

2

6

FIFA Players’ Agents Regulations (2008), Article 19.
Cf. inter alia decision number 712988 under www.fifa.com.
7
FIFA Players’ Agents Regulations (2008), Article 20.
8FIFA Players’ Agents Regulations (2008), Article 27.3.
9FIFA Players’ Agents Regulations (2008), Article 28.

INTERNATIONAL SPORTS LAW AND POLICY BULLETIN 1/2016

58

FIFA REGULATIONS ON WORKING WITH INTERMEDIARIES.
ANALYSIS FROM THE PERSPECTIVE OF THE CLUBS
by Ornella Desirée Bellia*

1.

Introduction____________________
Head of Legal Affairs at the EPFL (Association of European Professional Football Leagues),
LL.M. in International Sports Law (ISDE), Negotiation and Leadership Diploma from Harvard
Law School. Ornella previously worked as Legal Affairs Manager of a football club in the Italian
top division, and as a legal consultant in some of the most renowned law firms worldwide, having
gained professional experience in several countries (UK, Spain, Italy, Brazil and Switzerland).
Ornella is lecturer in Sports Management and Sports Law Masters in Italy and Spain, she is authorof several publications in specialized journals and books, guest speaker at international events in
Europe and the US. As Head of Legal Affairs of the EPFL, she is in charge of all the legal issues
involving the interests of the European Leagues at international level. E-mail:ornella.bellia@epfl-europeanleagues.com.
1
According to the new FIFA regulatory framework, the applicant no longer has to pass an
examination, nor has to conclude professional liability insurance or provide a bank guarantee for aminimum amount of CHF 100,000. However, in implementing their own regulations, some National
Associations have maintained the prerequisite to pass an exam (Mexico) or an interview (Spain);several associations have maintained the prerequisite to have a professional liability insurance (e.g.
Brazil, Mexico, Portugal).
*

TEASER

The new FIFA Regulations on Working with Intermediaries (hereafter the “FIFARegulations”) is probably the most important recent change to the FIFA regulatory
framework. The main objective of the new Regulations consists in setting up a
more transparent system, whereby players and clubs are able to choose any parties
as intermediaries, as far as certain minimum requirements are met. Therefore the
new system aims to seek a broader control over individuals who represent players
and/or clubs in the negotiations of employment contracts and transfer agreements,
but also to control the activity itself rather than the access to such activity.
Thus, for the sake of transparency, a registration system for intermediaries
is set up at national level, where intermediaries shall be registered each time aplayer or club engages his services. As the old licensing system ceased to exist,
being replaced by the registration system, the mandatory procedure to become anintermediary is now much simpler than before.1

Ornella Desirée Bellia

In the aforementioned registration process, clubs play an active role as
several duties are to be carried out by them when signing a representation contract
with an intermediary.2
Clubs engaging the services of an intermediary have to:i) act with due diligence, ensuring that the intermediary has filled in and signed
the so-called intermediary declaration,3ii) submit such a declaration to the relevant association, i.e. the association where
the player is to be registered, or to the previous association in the event theclub engaging the services is the releasing club,4iii) disclose to their respective association the full details of any and all agreed
remuneration or payments of whatsoever nature that they have made or thatare to be made to the intermediary.5
In addition to the foregoing, clubs have a general obligation to ensurethat any transfer agreement or employment contract concluded bears the nameand signature of such intermediaries, if any. Therefore, in the case that nointermediaries have been involved in the negotiations, clubs have to ensure thatthe relevant documentation contains a specific disclosure of this fact.6 For thesake of completeness, it shall be noted that on occasion of international transfers,
specific information in this respect also has to be uploaded onto the FIFA Transfer
Matching System (TMS).
Furthermore, when signing a representation contract, the club has tospecify the nature of the services offered by the intermediary for each specifictransaction: for instance, consultancy in view of concluding a transfer agreement
or an employment contract, or any other kind of services.
Last but not least, clubs must declare whether the intermediary acts
exclusively on behalf of the club itself or also on behalf of the player, as a specificduty of disclosure is provided in the latter case. In fact, the FIFA Regulations
introduced the possibility for clubs and players to engage the services of the sameintermediary for the same transaction. The dual representation, which was forbidden
and sanctioned in the previous system, is now allowed as long as both the club andthe player give their express written consent prior to the start of the relevant
negotiations and specify who will remunerate the intermediary for his professional
services.7____________________It shall be noted that in practice, even in those cases where the intermediary is engaged exclusively
by the player, it is unlikely that the latter will put in place all the commitments required by the newrules, for the simple reason that he has neither the expertise nor the willingness to do so. Players
engage intermediaries in order to receive their assistance during the negotiations and in administrative
activities associated with football transactions. Thus, in practice it is the acquiring club that takes
care of those activities rather than the player.
3Art. 2.2 FIFA Regulations.
4Art. 3.2 FIFA Regulations.
5Art. 6.1 FIFA Regulations.
6Art. 6.2 FIFA Regulations.
7Art. 8.3 FIFA Regulations.
2The Clubs’ point of view

2.

Pros and cons of the new Regulations with a focus on the clubs’
perspective

Registration with the national associations

According to the new FIFA Regulations “Intermediaries must be registered in
the relevant registration system every time they are individually involved in a
specific transaction”. 11____________________As mentioned above, in implementing their own regulations according to Art. 1.2 FIFA Regulations,several National Associations have maintained some prerequisites, such as to conclude professional
liability insurance.
9Art. 1.3 FIFA Regulations.
10FIFA could have opted for titles such as “Intermediaries’ Regulations” or “Regulations forIntermediaries’ Activity”, rather than “Regulations on Working with Intermediaries”. The title
reflects the content of the Regulations, which has as direct subjects clubs, players and associations,rather than the Intermediaries. It shall be noted that the previous Regulations were entitled“Players’Agents Regulations” rather than “Regulations on Working with Players’ Agents”.
11
Art. 3.1 FIFA Regulations.
8

THE FIFA REGULATIONS ON INTERMEDIARIES.
THE PLAYERS’ POINT OF VIEW
by Wil van Megen*

1.

TEASERAs already pointed out, the new regulations provide a much simpler process for
those wishing to execute intermediary activities, since the applicant no longer has
to pass an examination, nor has to conclude a professional liability insurance orprovide a bank guarantee.8
However, it appears that, while the new rules have facilitated the accessto the profession for those wishing to conduct intermediary activities, thebureaucratic activities of football clubs may have been burdened, particularly on
occasion of those transfers conducted with the services of foreign intermediaries.
As it will be explained in the following paragraph, the system appears
now particularly fragmented due to the discrepancies existing between national
regulations and FIFA Regulations. Indeed, National Associations have been entitled
to go beyond the minimum standards/requirements established by the FIFA
regulatory framework9 and have had wide autonomy in the implementation of
their own rules. Such a “de-internationalisation” has led to a system whereinternational transactions may be complicated due to several factors explained
below.
In addition to the foregoing, the new system has brought morecommitments and liability on clubs (and players). It is interesting to note that,while the previous Regulations governed the activities, duties and responsibilities
of agents, the new rules regulate the activities, duties and responsibilities of clubs
and players in their relationship with intermediaries, rather than the intermediary’s
activity itself.
The different wording in the titles of the Regulations – the previous andthe current ones – is quite eloquent in this respect.10
a)

INTERNATIONAL SPORTS LAW AND POLICY BULLETIN 1/2016

59

Introduction

When speaking about agents/intermediaries with club representatives it regularly
appears that they are considered as an unavoidable evil. Agents are described as
greedy people taking too much money out of football. In fact not many people
empathize with football agents. However, it is those same clubs, paying the fees
they describe as exceptional. In the end it is always a matter of budget. Do thetransfer sum, the player’s remuneration and the fee for the agent/intermediary fit
into the budget?
In fact this means that the more the intermediary receives, the less theplayer earns. The point is that players don’t always realize this and presume that
their representatives are paid by the club and not – indirectly – by themselves. On
the other hand, it is true that players need someone to negotiate the best possible
result for them at a reasonable price.
FIFA started to regulate agents’ activities back in 1996. By introducing
the regulations in 2001, FIFA introduced a sophisticated framework for agents’
activities in football. A free service of FIFA for agents to collect unpaid fees waspart of the package.
The system seemed to function to a certain extent and was updated on
several occasions. In October 2007 the FIFA Executive Committee decided toincrease the standard of players’ agents with new criteria. One of these criteria
was the renewal of the license every five years in combination with a new exam
for each agent.
The new criteria triggered a group of, mainly Belgian, agents to takeaction against these changes. According to their lawyers this decision was illegal.
They argued that a private organization was not allowed to regulate a profession– only a government could do so. A court case was prepared in order to havepreliminary questions for the ECJ.1____________________
Wil van Megen is head of FIFPro’s Legal Department and attorney-at-law with MHZ-advocaten.
E-mail: W.van.Megen@fifpro.org.
1
www.espnfc.com/story/514392/des-agents-de-joueurs-attaquent-la-fifa-pour-abus-de-pouvoir.
*

68

Wil van Megen2.

Relevant regulations

FIFA delegated the authorization of making regulations to the national Federations.
The FA’s will set their own regulations based on the FIFA Regulations on Working
with Intermediaries.
According to the International Trade Union of Football Players (fromhenceforth FIFPro) the system needed improvement on five main issues:
Regulation of agents’ remuneration, since a substantial number of payments
were extremely disproportionate in relation to the work performed;
Protection of minors;
Conflict of interest by representing both parties (club and player);
Prevention of tapping up contracted players;
Lack of professional competence.
These points match, more or less, a resolution by MEP Doris Pack onbehalf of the Committee on Culture and Education on 18 March 2010.3
Participation in the FIFA Working Group on Intermediaries gave FIFProa possibility for direct influence on the new system.
By regulating the activity, rather than the profession, FIFA tried to prevent____________________
2
Case T-193/02 Piau v Commission [2005] ECR II-0209.1 Case T-193/02 Piau v Commission[2005] ECR II-0209.
3
MOTION FOR A RESOLUTION 18.3.2010 B7 0000/2010 further to Question for Oral Answer
B7 0000/2010. pursuant to Rule 115(5) of the Rules of Procedure on players’ agents in sports.

TEASER

Before this, in 2005, we had the Piau-case before the ECJ in which
FIFA strongly defended the Agents’ Regulations.2 Piau complained about the FIFA
Regulations on Agents, on the grounds of competition law, as he felt that thoserules included unjustified restrictions on trade, like the exam and the financial
deposit. He also argued that FIFA abused its dominant position and that theRegulations infringed the freedom of movement of services regarding players’
agents.
After the European Commission rejected the complaint, the case ended
up in the Court of First Instance.
It is important to notice that the Court stated that FIFA is an associationof undertakings within the meaning of Article 101(1) TFEU and therefore is subject
to EU competition law. The work of agents is an economic activity that falls underEU-law and so were the FIFA Regulations regarding agents.
The Court ruled that the Commission was right in rejecting the complaint,
because there was sufficient justification for the system since the measures were
proportionate and necessary, keeping in mind the specific demands of the industry.
The initiative of the Belgian group, in combination with the implicationsof the Piau-case, triggered the process for the new regulations. Looking at theconsiderations of the Court, we can assume that the new Regulations also fallwithin the scope of Article 101(1) TFEU.

The Players’ point of view69

Piau-like cases. The efforts of the working group resulted in a set of minimum
requirements for intermediary activities.
When we look at these requirements, we see that the first step isregistration instead of licensing. The new regulations require registration of therepresentation contract, by the national federation, as well as every transaction(art. 2.3 and art. 3.1).
The fact that intermediaries can be either natural persons as legal persons
might lead to problems in case the regulations are violated. Legal entities can turninto “hiding places “ for less respectable activities. An infringement of regulations
can only be performed by persons. If the intermediary is a legal person the people
involved in intermediary activities must also qualify as an intermediary. The questionis what to do in case of sanctions. Does a sanction against a legal person affectonly the legal person itself or also the people involved or only the person who
violated the regulations? Also the liability in case of mistakes can be problematic,
especially now that there is no longer a requirement for liability insurance. The
person violating the regulations can hide behind a bankrupt legal entity if things gowrong – neither the FIFA requirement, that the individuals representing the legal
entity within the scope of the transaction in question have an impeccable reputation,
nor the Intermediary Declaration for legal persons will help here. The single
recommendation of the English FA in the Declarations, Acknowledgments andConsents for Legal Persons regarding insurance needs strengthening, as arecommendation cannot be enforced.
3.

Remuneration

Looking at the figures of the FIFA TMS system there were indications that agents
took out much more money than the recommended 5% fee of the first year of theplayer’s contract.4
The aim of the new regulations is to provide a better balance inintermediaries’ fees. The system now applies, not only to the former players’
agents, but to all who represent players and/or clubs in negotiations with a view toconcluding an employment contract.
According to TMS, only 25-30 % of transfers were managed by official
FIFA licensed agents.5 In order to cover every form of representation of players,
the exceptions for relatives and lawyers as representatives were excluded. Eachtransaction needs registration with a mandatory mention of the details of theintermediary involved.
Regarding the remuneration, there is a strong recommendation to limit
the remuneration to 3% of the fixed income of the player for the entire duration of
the contract. It needs to be seen whether this recommendation can be maintained,____________________
4
5

http://ec.europa.eu/sport/library/documents/xg-gg-201307-final-rpt.pdf.
http://ec.europa.eu/sport/library/studies/final-report-eu-conference-sports-agents.pdf.

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272

THE IMPLEMENTATION OF THE FIFA REGULATIONSIN ENGLAND
by Daniel Lowen*

1.

Introduction

2.

Relevant national law

In England, intermediaries’ activities are regulated in three ways: (i) by the common
law, (ii) by UK legislation and (iii) by the Regulations and other relevant rules andregulations laid down by football’s governing bodies. Whilst this chapter focuseson the third item (and in particular the Regulations), it is important to note the otherregulatory strands, which together form the regulatory landscape that anintermediary is required to navigate.
2.1

The common law

The common law definition of agency is:____________________*
1Partner, Couchmans LLP. E-mail: Daniel.Lowen@couchmansllp.com.
The FIFA Regulations on Working with Intermediaries, Articles 1.2 and 1.3.

TEASER

The implementation of FIFA’s Regulations on Working with Intermediaries (the“FIFA Regulations”) on 1 April 2015 signaled the biggest transformation of player
and club representation in the history of professional football.
Whilst Article 1 of the FIFA Regulations requires national associations to
implement and enforce its provisions, it expressly reserves associations’ rights “togo beyond these minimum standards/requirements”.1
On 5 February 2015, the English Football Association (“The FA”) became
one of the first national associations worldwide to publish its own supplemental
regulations, the FA Regulations on Working with Intermediaries (the“Regulations”). This chapter examines briefly the national laws relevant tointermediaries’ activities, provides an overview of the Regulations, its key principles
and requirements, and assesses certain practical effects of the new regulatory
regime in England.

Daniel Lowen“the fiduciary relationship which exists between two persons, one of whom
expressly or impliedly manifests assent that the other should act on his behalf
so as to affect his relations with third parties, and the other of whom similarly
manifests assent so to act or so acts pursuant to the manifestation”.2
The common law duties to which an intermediary is subject when carryingout activities on a player’s behalf are extremely broad and include (nonexhaustively) the duty to use due skill and care,3 to act in accordance with theterms of appointment and not to exceed his or her express or implied authority, toobey the lawful instructions of the principal, not to put himself into a situation
where his interests will conflict with those of his principal4 and, as was highlighted
in Imageview Management Ltd v Jack,5 a high profile case between a player
and his agent, not to make a secret profit.6 The 2009 case underlined the highstandards imposed upon agents (i.e. intermediaries) by the common law (in addition
to the requirements of any regulations laid down by football’s governing bodies).
As stated by Lord Justice Jacob in the Court of Appeal in that case, “The law
imposes on agents high standards. Footballers’ agents are not exempt from these.
An agent’s own personal interests come entirely second to the interests of his
client… An undisclosed but realistic possibility of a conflict of interest is a breachof [an agent’s] duty of good faith…”.
___________________
2
B. Bowstead and FMB Reynolds, ‘Bowstead & Reynolds On Agency’ 19th ed, United Kingdom,
Sweet and Maxwell, 2010.
3
Beal v South Devon Ry Co (1864) 3 H&C 337.
4
Aberdeen Railway v Blaikie Bros [1854] 1 Macq 461.
5
Imageview Management Ltd v Jack [2009] EWCA Civ 63.
6
The agent of Kelvin Jack, a Trinidad and Tobago international goalkeeper, negotiated his client’s
contract of employment with Dundee United FC. A commission of 10% was agreed, calculatedwith reference to the player’s gross salary. Unbeknown to the player, the agent negotiated a sideagreement with the club under which the club would pay £3,000 for the agent’s efforts in obtaining
the player’s work permit. When the player subsequently found out about the side agreement, heceased paying the commission to the agent. The agent sued the player for unpaid commission andthe player counterclaimed not only for the secret profit paid under the agent’s side deal with theclub, but also for all of the commission already paid to the agent. The Court of Appeal found infavour of the player and the agent’s commission was forfeit – the player did not have to pay any
further commission and was entitled to repayment of all of the fees paid by him to the agent.
Furthermore, the £3,000 fee paid by the club to the agent under the side deal was a secret profit
made by the agent acting as a fiduciary and, as such, it was recoverable by the player. The Court
reasoned that in the circumstances, the agent had clearly used his connection with the player toobtain a benefit for himself. There had been a clear conflict of interest (it was preferable for theagent to move the player to Dundee United FC as opposed to any other club, in view of his sideagreement with Dundee United FC, and the more that was paid to the agent, the less there might beavailable to be paid to the player), and the agent had acted in breach of his fiduciary duties to theplayer. The case was a salutary lesson for agents and highlighted the need under common law foragents or intermediaries to disclose to his or her principal any and all commission he or she may
earn – if they allow themselves to be in a position where there is a real possibility of their interests
conflicting with those of their principal, they risk losing not only any secret profit but also theirlegitimately received commission.

The implementation of the FIFA Regulations in England

2.2

UK legislation___________________
Employment Agencies Act 1973, s. 6.
Conduct of Employment Agencies and Employment Businesses Regulations 2003, Regulation
13.
9
Bribery Act 2010, s. 1.
10Excluding, of course, remuneration payable to the intermediary in accordance with a representation
contract and/or Transaction documentation.
11
Such payments (or gifts) are traditionally known in the football industry as ‘bungs’ (a muchdiscussed topic in football).
8

THE IMPLEMENTATION OF THE FIFA REGULATIONSIN FRANCE
by Jean-Michel Marmayou*

1.

TEASER

There is no UK legislation that directly regulates the activities of players’
representatives. There are, however, various statutes which impact upon andconstrain the conduct of intermediaries in certain ways.
The Employment Agencies Act 1973 and the Conduct of Employment
Agencies and Employment Businesses Regulations 2003 set minimum standardsof conduct for employment agencies and employment businesses which provide
services for the purposes of finding employment for workers and supplying potential
employees to employers. The legislation imposes various obligations on employment
agents, many of which overlap with the common law duties imposed uponintermediaries. For example, offering workers financial benefits or benefits inkind to use the intermediary’s services is prohibited7 and there is an obligation todisclose to the principal at the outset of the relationship details of fees payable,
who will pay the fees and the services for which fees will be payable.8 However,to the author’s knowledge, an intermediary (or, previously, licensed agent) has yet
to be charged with a breach of the Act or the Regulations.
The Bribery Act 2010 (the ‘Bribery Act’) is a piece of legislation of which
all intermediaries should be aware, as it established two criminal offences:a) Bribing another person – an intermediary will be guilty of an offence if they
offer or give a financial or other advantage with the intention of inducing
another person to perform a public or commercial function or activity
improperly or reward that person for doing so;9 andb) Being bribed – an intermediary will be guilty of an offence if they receive afinancial or other advantage intending that a public or commercial function or
activity should be performed improperly as a result.
Under s. 4 of the Bribery Act, improper performance is performance or
non-performance which breaches expectations of good faith or impartiality or
breaches a position of trust. The penalties under s. 11 of the Bribery Act arepotentially serious – an unlimited fine or imprisonment for up to 10 years.
If an intermediary pays or accepts payment from a third party in relation
to the duties he carries out for his principal (the player), including payments to orfrom individuals at a club in connection with a player transfer,10 that will in theory
constitute an offence under the Bribery Act.11

7

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273

Introduction

Let it be said from the outset: there are at least four reasons why the new FIFA
regulations will not apply in France.1
Firstly, because France has long had very strict regulations governing
the profession of sports intermediaries. These regulations cover all sports and thedecision has been taken not to waiver them just for football. The second reason is
because the FIFA regulations cannot have a direct applicable in French law as
they emanate from a private association governed by Swiss law.2 Furthermore,
the FIFA regulations themselves state in their Article 1.2 that “associations are
required to implement and enforce at least these minimum standards/
requirements in accordance with the duties assigned in these regulations,subject to the mandatory laws and any other mandatory national legislative
norms applicable to the associations. […]. And in their Article 1.3 “The rightof associations to go beyond these minimum standards/requirements ispreserved.” Lastly, French law, that the French football association (Fédération
Française de Football – FFF) is required to apply, is broadly in line with the “minimum
standards/requirements” set out in the new FIFA regulations.
____________________“Maître de conférences” at Aix-Marseille University where he teaches Sports law and European
law. Head of the Sports law Centre of Aix-Marseille (www.centrededroitdusport.fr). Member of
the Centre for economic law (CDE EA 4224). Affiliate professor, Kedge Business School. Head of
Les Cahiers de droit du sport. Author of several books on sports law. E-mail:jean-michel.marmayou@univ-amu.fr.
1
The French Regulations on Working with Intermediaries (Règlement des agents sportifs FFF) isavailable on https://www.fff.fr/common/bib_res/ressources/450000/5000/160719135241_reglement_des_agents_sportifs,_saison_2016-2017.pdf (2 September 2016). The FFF has written to theFIFA informing it that the new regulations would not be applicable on French territory.
2
CA Metz, 30 June 2011, Cah. dr. sport no 25, 2011, 120, note J.-M. MARMAYOU. – CE, 8 nov.
2006, no 289702. – CE, 2 February 2006, no 289701. – TGI Saint-Étienne, 26 January 2005, Cah.
dr. sport n° 3, 2006, 100, note J.-M. MARMAYOU. – CA Aix, 17 April 2002, Bull. Aix 2002/2, 88,note F. RIZZO – CA Metz, 20 March 2002, Rev. jur. éco. sport 2003, n° 66, 50.
*

288Jean-Michel Marmayou

The implementation of the FIFA Regulations in France

And finally, there are only three real difficulties: the requirement for thedomestic football associations to publish the details of each transaction and thecumulated amount of the sums paid to the agents by the clubs, the equivalence ofqualifications and the cap on commissions.
[Although the English version of the FIFA regulations uses the term
“intermediary”, this paper will use the more familiar term of “sports agent”].
2.

Relevant national law

Sports associations have been awarded considerable powers by the Codedu Sport. This has resulted in the FFF issuing specific regulations applicable tosports agents. These regulations reiterated the main principles of the law while
adding certain technical details. They are published on the FFF website.7
3.

Principles et definitions

The principles of French law governing sports agents are fairly simple. The law
fixes the criteria that limit its application. And in those cases where it has to apply,
it requires that the agent (i) hold an official licence to operate a business as asports agent (the conditions for obtaining which are very strictly detailed); (ii)comply with certain good practice rules; (iii) submit to the disciplinary proceduresof the sports association.
4.

TEASERIn France, the job placement business is regulated and in principle reserved toauthorised public or semi-public bodies.3 For private individuals to become involvedin the placement of sports persons, the authorities had to4 regulate the professionof the sports agent by adopting a special text that derogates from public law. They
did so in 1984.5
Current French law relating to sports agents is set out in Articles L.2225 to L.222-22, R.222-1 to R.222-42 and A.222-1 to A.222-6 of the Code du Sport[codified Sport Laws].6 These Articles result from several modifications andreforms over the years, the last of which was law 2010-626 dated 9 June 2010.

289

interested in signing a contract under which a person will be paid to practicea [professional] sport or training activity, or concerning the signature of an
employment contract for a paid sport or training activity can only be exercisedby an individual holding a sports agent’s license.” Therefore, within the meaningof the Code du Sport, the agent acts as an intermediary whose role is to bring
together two future contracting partners. The person may be either acting only asa broker, or as an agent for one of the parties under an agency agreement thatmentions this “bringing together” aspect. A simple advice given to the parties
interested in signing a sports contract is not covered by the sports laws and therefore
does not require that the person hold a licence to act as an agent.
However, the law does not define its field of application based solely on
the criteria of the agreement under which the agent is appointed. It also takes
account of the nature of the operation in which the agent is participating. In fact,
this operation consists in the placement of a person in employment: the agent’s
role is to “place” the sportsperson or trainer so that he may practice his sport orexercise his profession. This notion of placement is envisaged very pragmaticallyif a direct placement is being sought, it will covers all the associated contractual
transactions, both the contract and any pre-contract agreements (such as promiseof employment, preference pact, etc.), transfer agreements (transfers, loans,transfer promises)8 and contracts of collaboration between sports agents.9
On the other hand, Article L.222-7 of the Code du Sport does not apply
to the actions by an intermediary leading to the signature of image contracts,
endorsements or even wealth management. In such cases, the intermediary is not
subject to the Code du Sport and does not require a licence to exercise his
profession.
International scope - The agent’s business often includes an international aspect
due to the nationality of the agent, the sportsperson or the club for whom he isacting (currently or in the future). This international dimension raises the questionof the territoriality of the French system relating to sports agents. Moreover, France
is one of the few countries10 to have adopted rigorous legislation in this field andquestions have to be asked as to its possible classification as a public order law. In
other words, should French law routinely take priority over foreign law?

The sports agent’s role____________________

Scope - Under Article L.222-7 of the Code du Sport, “the profession thatconsists in bringing together, for payment of a remuneration, the parties____________________
Art. L. 5311-1 et s., C. trav.
CA Montpellier, 28 Feb. 1996, Juris-Data no 1996-034119 having qualified the sports agent’s
business as “operator of a job placement business”.
5
Art. 15-2, loi n°84-610, 16 July1984.
6
www.legifrance.gouv.fr.
7
www.fff.fr.
3
4

Cass. 1re civ., 18 July. 2000, Dr. et patr. 2001, n°91, 40, note F. RIZZO ; JDI 2001, 97, note
E. LOQUIN et G. SIMON.
9
CA Aix, 21 sept. 2006, JCP G 2006, II, 10202, note F. RIZZO, reforming T. com Grasse, 7 June
2004, Cah. dr. sport n°1, 2005, 105, note F. RIZZO. Therefore, an unlicensed operator whose role is
to simply introduce contracting partners (and receive a “finder’s fee”) should be considered someone
who is illegally exercising the business of sport’s agent.
10
C.R. SIEKMAN et alii, Player’s agent worlwide legal aspects, T.M.C Asser Press, 2007. – KEA KEA& alii, Sports agents in the European Union, Study conducted in 2009 for the European Commission.
(http://ec.europa.eu).
8

INTERNATIONAL SPORTS LAW AND POLICY BULLETIN 1/2016

330

Salvatore Civale and Michele Colucci

Contrary to the previous regime, the activity of intermediaries is not
limited to natural persons but it is also open to legal entities which are subject tothe same rules and requirements applicable to natural persons.
The present article aims to detail the new provisions by underlying thedifferences with the previous regulations, some legal gaps, and provide somesuggestions in order to make the legal framework more effective.
THE FIGC REGULATIONS ON INTERMEDIARIES
by Salvatore Civale and Michele Colucci*

1.

Introduction

Salvatore Civale, Founding and Managing Partner of the Law Firm "Studio Civale” and Presidentof the Italian Sports Lawyers Association. Arbitrator of the European Handball Federation Courtof Arbitration (ECA), lecturer and author of publications related to Sports Law.
E-mail: avvocato@studiocivale.it.
**
Michele Colucci, Scientific Director of the Sports Law and Policy Centre and Honorary Presidentof the Italian Sports Lawyers Association. E-mail: info@colucci.eu.
1
FIGC, C.U. 190/A, “Regolamento per i servizi di procuratore sportivo”, available on
www.figc.it/it/104/3818/Norme.shtml (17 September 2016).
2
Under the previous regulations, in order to get a license the applicant had to pass an exam, take out
a professional liability insurance and accept a “Code of Conduct”, which imposes on the agents
duties of transparency, impartiality and respect for the relevant sports laws and regulations.
Moreover, the applicant had to meet some eligibility criteria and comply with strict conflicts ofinterest's rules. Only a fully licensed agent was legally entitled to provide the intermediation
services to players and clubs.
However, the same FIGC Regulations did equate to the agents those lawyers and player's relatives(parent, brother or spouse) who usually act on behalf of the players.
Finally, albeit not a FIGC member, the Agent was subject to its disciplinary rules in order to ensure
full compliance with the relevant FIFA and FIGC Regulation.

TEASEROn 26 March 2015, the Italian Football Association (Federazione Italiana Giuoco
Calcio, hereafter “FIGC”) issued the Regulations regarding the services of theintermediary (hereafter “the FIGC Regulations”),1 implementing the relevant FIFA
Regulations.
The FIGC Regulations have deeply reformed the previous legal
framework under which the acquisition of a licence was an essential requirement
to provide professional services as an “Agent”.2
Now everybody can act as intermediary provided that he signs a
representation contract and a declaration by which he obliges himself to follow
the FIGC, UEFA and FIFA rules.
He can act in the interests of a player, a club or both of them but he must
avoid conflict of interests especially when he is already a member of the Italianfootball federation.
____________________*

2.

Definitions and Principles**

A first observation concerns the terminology adopted by the Italian Football
Association.
Although, the new regulations aim to implement the new FIFA rules on
working with intermediaries in Italy, none of its articles and annexes refers toagents or to intermediaries. The FIGC legislator prefers rather using the term“procuratore sportivo” (hereafter always mentioned as “intermediary”) in orderto have a clear cut distinction of this category of sport professionals from anyother existing type of broker in Italy.3
So, the “procuratore sportivo” is defined as “the person or the legal
entity who, on a permanent basis or occasionally, assists or represents a
sports club and/or a player4 ( ... ), under a specific contract, with no regard
to his/her professional qualification and to his/her relationship with theathletes represented”.
The regulations only apply to clubs and players5 when receive servicesof an intermediary in order to deal with the activities linked to an employment
agreement and/or a transfer agreement,6 provided that the following two conditions
are fulfilled:
the parties sign the relevant representation agreement enclosed with theregulations;the intermediary is already registered to the “register of intermediaries”
established by the FIGC.
With regard to the second condition, the regulations must be interpreted
in the way that an intermediary must file an application with FIGC and wait for theacceptance/ratification of his request, before providing his services or signing a
representation agreement with a Club or a Player.
____________________
M. Lai “Dagli Agenti di Calciatori ai Procuratori Sportivi: la nuova disciplina in materia diintermediari nel calcio professionistico”, Rivista di Diritto ed Economia dello Sport 1/2015, SLPC,
79-103.
4
The word “player” means not only a professional footballer who has already been registered by
a club with a professional contract, but also a player who signs/concludes a professional contract
for the first time.
5
The regulations, as indeed required by FIFA, concerns only the representation agreement that anintermediary concludes with a club or a player. It is not applicable for coaches, assistant-coaches orphysical trainers.
6
Although the definition of club in article 1 refers to a club affiliated to the FIGC, the activities ofan intermediary may also involve a transfer of a player from or to a club based in foreign countries.
3

The FIGC Regulations on intermediaries

INTERNATIONAL SPORTS LAW AND POLICY BULLETIN 1/2016331

As a consequence, any document signed by the intermediary who is notduly registered is considered as null and void.
3.

The registration

3.1

Registration procedure and fees

3.2

The Declaration of intermediaries

The registration is accompanied by a declaration that partially mirrors the FIFA
one in terms of compliance with the relevant ordinary and sports rules.
Such a declaration must be signed by both natural and legal entities. In
the latter case, all the company's representatives and intermediaries must be
mentioned and those acting as intermediary within the company must be clearly
identified.
By signing such a declaration the intermediary agrees to:
be bound by the FIFA and FIGC’ statutes and regulations;submit himself to the disciplinary jurisdictions of both FIGC and FIFA;
declare that he has no contractual relationship with leagues, associations,confederations or FIFA that could lead to a potential conflict of interest;
consent for the association to process his/her personal data, and to publish on
the website, or in the official communication, the mandates received andeven the publication of the payments received for the services as intermediary;
authorize the national association and the leagues to discover all relevant
information and documentation from any source, including the public
administration, the intermediary himself or third parties, in order to verify thetruth of his/her declarations and the fairness of his/her actions;authorize to publish disciplinary sanctions, in his/her regard, given by therelevant sports judicial bodies;by Michele Colucci*

1.

TEASERThe Italian registration procedure is stricter and more complicated than the oldFIFA one.
In fact, pursuant to article 4 of the FIGC regulations any person, legallyresident in Italy, is entitled to apply to the FIGC to register as intermediary.
Nevertheless article 5 the FIGC Regulations require a “double”
registration:- one for the natural person or the company, acting as intermediary; and- one for each contract of representation.
Moreover intermediaries need to pay yearly registration fee of 500 euros
in addition to a fee of 150 euros for each individual representation contract.
The registration is valid for one year only and it can be renewed. There
are no specific provisions on renewals of representation contract and, therefore,
intermediaries need to file a new application and submit all relevant documentation
ex novo.

FIFA REGULATIONS ON WORKING WITH INTERMEDIARIESAN UPDATED COMPARATIVE ANALYSIS

Introduction

Twenty months after the entry into force of the FIFA regulations on working with
the intermediaries on 1 April 2015, at least one intermediary was involved in 21%
of all international transfers of players carried out in 2016.1
According to the International Transfer Matching System (ITMS)2 theintermediaries were 1680 just before the entry into force of the regulations. Theyrose to 2221 until 31 March 2016 and from that day until October 2016 they werealready 1700.
Worldwide, the clubs spent a total of 368 Million USD in commission tointermediaries in 2016, while 274 were spent in 2015 and 238 in 2014.3
The above figures clearly show that the entry into force of the regulations
determined a significant transparency increase in getting the real figures ofintermediaries involved in international transfers and the amount of their turnover.
In fact comparing the 2015-2016 figures with those of the first seven months ofthe term 2016-2017, the observer can easily verify the positive outcome of themandatory registration established by the FIFA regulations and implemented –although in a quite fragmentary way – by the member associations.
The FIFA Regulations’ goal to better protect the integrity of football aswell as the interests of its stakeholders has been met and – in this way – they
contribute to fulfill their financial responsibilities.
____________________
Honorary President of the Italian Association of Sports Lawyers and Sports Law and Policy
Centre. The information and views set out in this study are those of the author and do not reflect
at all the official opinion of the institution he belongs to. E-mail: info@colucci.eu.
1
K. Morris, presentation on FIFA TMS and FIFA Regulations on working with intermediaries.,
Players Contracts, London, 21 October 2016. The FIFA TMS website is available on
www.fifatms.com.
2
The ITMS is the online platform containing all data related to international transfers of players(employment and transfer agreements, reference to other agreements, TPO declarations,Intermediaries declaration) that introduced standardisation and enhanced transparency based onFIFA’s Regulations on the Status and Transfer of Players.
3FIFA TMS, Intermediaries in International Transfers, 2016, https://www.fifatms.com/wp-content/
uploads/dlm_uploads/2016/11/Intermediaries-2016.pdf (visited on 25 November 2016).
*

592

Michele Colucci

593

Therefore, devolution in favour of the national associations rather thande-regulation, seems to be a more appropriate definition of the new FIFA policy.
Indeed, FIFA has willingly limited the scope of its own intervention in this field.
By relinquishing a detailed regulatory perspective, FIFA has privileged a“functionalist” approach: the intermediary is not recognised as a registeredprofessional but he acquires relevance only when carrying out activities linked to
the negotiations leading to a transfer or employment contract of a player.
Out of these activities, the profession of intermediary has a limited or no
relevance to FIFA. If the profession of agent/intermediary still survives, thecompliance with quality standards is exclusively up to the national associations todeal with. They are bound to create mechanisms that ensure the intermediaries’
compliance with high standards of professionalism, expertise and competence.
The agents are definitively doomed for the international federation of football.
FIFA’s intervention in relation to intermediaries is limited to extending at international
level the scope of those national sanctions concerning intermediaries’ malpractices.

TEASER

FIFA has deeply revised its regulatory strategy passing the governanceresponsibilities on to the member associations which must implement someminimum standards.
Moreover FIFA addresses itself directly to players and clubs in order to
upgrade the safeguard of their rights and entitlements rather than governing thelegal and organisational aspects of the category of intermediaries, who are
traditionally not considered as parties of the international football community.
This revolutionary change of approach looks like a cautious retreat within
the more familiar regulatory scope covering the traditional stakeholders.
In doing so, FIFA offers a new definition of intermediary covering also
legal persons. It requires associations to set up a new registration system of theintermediaries and their activities (Art. 3 FIFA regulations), and virtually opens
the profession to anyone with a “self-certified” impeccable reputation, meaningthat he has not been sentenced with a financial or criminal offence during the lastyears.
Of greater significance is that FIFA has actually shifted the focus frommanaging the agents’ profession to monitoring the obligations of players and clubs
while working with the intermediaries. They must act with due diligence whenchoosing an intermediary and they are responsible for the obligations concerning
the signing and submission to the national association of the relevant requested
documents, in primis the representation contract and the intermediary declaration(Art. 2 FIFA regulations).
On this basis, the main target of the FIFA reform is to provide maximum
transparency to players’ employment and transfer negotiations, so as to comply
with both legal and ethical requirements as it is solemnly stated in the FIFA
regulations’ preamble.
In order to achieve this, FIFA rules set some minimum standards to be
implemented by the 211 national associations, which remain free to adopt stricter
criteria, subject to the ordinary laws applicable to the associations (Art. 1, paragraphs
2 and 3).
In this regard, although in some countries (Argentina, Belgium,
Cyprus, Czech Republic, England) intermediaries in football are not explicitly
regulated, they do not fall completely outside the scope of ordinary law.
Indeed, the relevant ordinary law provisions dealing with matters such as
employment and social security law, tax law, and so on, duly apply to their activities.
The legal framework can be even more complicated in federal states like
Belgium, Switzerland and UAE where multiple regional laws apply.
In France, the strict ordinary rules governing the profession ofintermediaries prevail in principle over the FIFA rules.
The same principle applies in those countries where public order law
protects the political, social, or economic organisations and interests and it ispreeminent over any other source of law.

FIFA Regulations on Working with Intermediaries: an update comparative analysis

2.

Access to the profession

FIFA receded from any attempt to regulate the access to the profession ofintermediaries at global level.
They are neither required to pass a selection anymore nor do they needto have a professional liability insurance nor provide a bank guarantee. However,the FIFA aloofness can live smoothly with the more regulatory approach of somenational associations. In fact, the access to the profession of intermediary has
been regulated in different ways at national level.
Some federations have kept the condition to pass an exam (China, Czech
Republic, Denmark (only for the optional category of “certified
intermediaries”), France and Ukraine (in the latter, only for the so-called“permanent intermediaries”), or an interview (Argentina, Slovak Republicand Spain), or both an exam and an interview (Mexico).
China waives the exam condition for foreign intermediaries who canprovide their services after having given a bank guarantee.
With regard to the interview, we share the concern and the perplexity
expressed by some authors about its subjectivity’s pitfalls. However we believethat a final judgment must be made in due course, when we will be able to counton a congruous number of relevant cases to review and identify possible trends.
Several other associations have maintained the prerequisite to have aprofessional liability insurance (Argentina, Brazil, Czech Republic, Mexico,
Paraguay, Portugal), or a proof of tax compliance (Belgium, Mexico, Portugal,
Slovak Republic) and social security obligations (Belgium and Portugal).
Some associations require foreigners to have residence in their country(Argentina, Paraguay, Turkey), to have a work permit (Mexico) or to submit abank guarantee (China).