The new FIFA regulations on

Players Agents

Dr. Roberto Branco Martins

9 October 2015
 Objective

Theoretical approach
Practical approach
Difference PAR RWI
Tour dHorizon
Threats
Opportunities
Discussion

We are all stakeholders

 Structure

History of agent regulation

The current framework
Reason for change
European Commission activity
The content of the new regulations
Tour dHorizon: national level regulations
UEFA level developments
Threats and opportunities
Conclusion
 Bosman Revolution

The European football labour market changed

substantially (abolishment 3+2 rule)
Influx of foreign EU players and non EU players
(Kolpak)
Higher sign-on fees and higher salaries
Long term contracts in order to safeguard
transfersums
Players relatively young high skilled workers
Players agents: the oil that keep the wheels of
international football in motion

4
 Agent

Facilitating this migration of football labour are agents.

An agent is a person authorised to act for another
when dealing with third parties. For a fee, commonly
known as a commission, an agent introduces players
to clubs, either by way of a transfer or a contract re-
negotiation, and they introduce clubs to one another
with a view to concluding a transfer. In this sense, a
players agent is merely an intermediary ensuring that
the supply and demand for labour within football is
met. Job placement without becoming an party to the
agreement. Yet this apparently simple definition masks
the complexity of the debate surrounding the merits
and methods of agent regulation.
 Regulation of Players Agents

From 1994 to 2001: interviews; deposit of CHF

200.000; signing of code of conduct

Growing number of agents demands a new

approach

New regulations in 2001 followed by the

regulations of 2008

In between Piau (CFI 2005):

Thus the need to introduce professionalism and morality to the
occupation of players agents in order to protect players whose
careers are short the fact that competition is not eliminated by
the license system the almost general absence (except in
France) of national rules the lack of collective organisation of
players agents are circumstances which justify the rule-
making action on the part of the FIFA. 6
 Previous Method of Regulation:
FIFA Regulations Players Agents
Edition 2008
http://www.fifa.com/mm/document/affederation/administration
/regulations_on_the_status_and_transfer_of_players_en_334
10.pdf
The most striking elements:
Drafted by FIFA
Examination as the entry level
Compulsory signing of a code of conduct
Exempt individuals such as lawyers and parents
Requirements to contracts
Temporary license, re-examination after 5 years (taken out)
The proposed use of standard contracts
Restrictions on methods of payments
Commission percentage lowered to 3% of annual salary of
the player (recommendation)
Payments by clubs and players
Sanctions for agents, clubs and players
No conflicts of interest 7
 FIFA Congress 2009 Bahamas

Jerome Valcke:

It's to say that at the moment the system is not

working if you look at a situation where only 25 per
cent of transfers involve a FIFA registered agent.
We have created a working group with the various
stakeholders - clubs, leagues, national
associations, confederations, FIFPro and FIFA to
define the rules and establish what we call an
intermediary. This is an issue we must tackle.
Period of uncertainty starts. Stakeholders involved
in various initiatives.
 2009 European Commission Study on
Sport Agents
- Steps should be taken to ensure that sports governance rules
comply with competition law and are compatible with the freedom of
establishment and the freedom to provide services.

- The absence of exemplary governance measures is a threat to the

ethics and the reputation of sport.
- The sports movement, which has important self-regulatory powers,
must establish credible and effective governance rules to protect
fairness in sport, sportspersons and the ethics of sport.
- Any intervention aimed at regulating the activities of sports agents
and sports placement mechanisms in general should be based on
the following principles:
- Complementarity (between the rules of sports federations and public
policies);
- Transparency (of financial flows in professional sport);
- Simplicity (of the measures adopted).
- Adaptability (to the peculiarities of each sport discipline).
- Trust (in sports agents and actors of the sport movement).
 2009 European Commission Study on
Sport Agents
The study favors a form of self-regulation for
agents whereas the specific rules adopted by
sports federations reflect the specificities of each
sport, unlike the more general government or
community regulations. Therefore the study
favors the sports movement in the use of an
examination based licensing system. However,
they must be supported by public authorities,
especially the European Union. The European
Union has a key role to play in promoting,
supporting and coordinating, for example by
facilitating a social dialogue at European level.
 Expert Group on Good Governance
2011-2014
Headed by Henk Kesler

The EU Work Plan for Sport identifies integrity of sport, in particular the fight
against match fixing and the promotion of good governance, as priority themes
for EU level cooperation in sport. Annex I of the Work Plan specifies the actions
based on these priorities, which include notably the following point:
Address the issues identified related to access to and to supervision of
the profession of sport agents and to transfers in team sports,
including, in particular, the issue of transfer rules for young players.
For this action, the Expert Group on 'Good Governance' (XG GG) has been given
the task to propose a follow-up to the Commission conference on sport
agents and to the forthcoming study on transfers in team sports.

Sports Ministers of Member States

Stakeholders were invited as experts:

FIFA
UEFA
EPFL
ECA
EFAA
 NL input to the Expert Group
Spelersmakelaars

Er moet gekeken worden naar het bredere belang van de sporter. Naar aanleiding daarvan moet je kijken
bij welk systeem je uitkomt. Dit moet een systeem zijn dat meer kwaliteit waarborgt met een strak
systeem van handhaving en internationale werking. Voorwaarden hiervoor zijn:
Registratieplicht met kwaliteitseisen
Permanente educatie/cursussen
Kwaliteit borgen door bijv. certificaat/kwaliteitskeurmerk
Mogelijk ook een beroepscode (zelfregulering)
Financile transparantie (vast percentage niet zinvol)
Strikte handhaving en toezicht op nationaal niveau (het is van belang dat makelaars vallen onder de
regels van het ontvangende land).
Strengere straffen en regelgeving
Er moet sprake zijn van een internationaal minimum en kwaliteitsregistratie door bonden.
De FIFA moet wereldwijd de ondergrens voorschrijven voor registratie- en kwaliteitseisen en moet de
door de bonden opgelegde sancties wereldwijd effectueren

Bart Zijlstra merkt nog op dat er vooralsnog dus geen behoefte lijkt te zijn aan specifieke nationale of
internationale regelgeving en geeft mee aan Henk Kesler dat het advies van de Expertgroep duidelijk
aan zal moeten geven wie waar verantwoordelijk voor is (welke instanties in de internationale en
nationale sportsectoren moeten verantwoordelijkheid dragen voor welke maatregelen, met
eventueel aanbevelingen aan de EC/EU-lidstaten).
 Regulations on Working with
Intermediaries (RWI)
http://www.frf.ro/public/images/uploa
ds/files/regulationsonworkingwithinte
rmediaries_neutral%281%29.pdf
 Topics

Minimum standards (Preamble)

Idem in article 1 (Scope)
General Principles (article 2)
Registration (article 3): when there is a transaction a
registration is necessary
Requisites for registration (article 4) (nota bene sub 5)
Representation contract (article 5)
Disclosure and publication (article 6)
Payments to intermediaries (article 7)
Conflicts of interest (article 8)
Sanctions on intermediaries (article 9)!
Enforcement of associations obligations (article 10)
Transitional measures (article
 PAR vs RWI

Minimum standards vs strict standards

License / Examination
Registration per transaction of every relevant contract
No age limitation for minors
No remuneration for minors
Remuneration in general
Conflicts of Interests
No sanctions on agents
No international jurisdiction in relation to disputes
No compulsory liability insurance
Thus the need to introduce professionalism and morality to the
occupation of players agents in order to protect players whose
careers are short the fact that competition is not eliminated by
the license system the almost general absence (except in
France) of national rules the lack of collective organisation of
players agents are circumstances which justify the rule-
making action on the part of the FIFA.
 Complaint at the European
Commission
EFAA and AFA discussion, AFA decision
Goes back (again) to Piau: 101 (association of
undertakings) 102 (dominant position)
AFA focus on recommendation of 3%
Justification
 Fragments of Complaint (1)

FIFA seeks to frame Regulation 7(3) as a

recommendation rather than a binding requirement.
But this is incapable of taking the measure outside the
scope of Article 101(1). If a recommendation
constitutes the faithful reflection of [an associations]
resolve to co-ordinate the conduct of its members on
the [relevant] market in accordance with the terms of
the recommendation, it is a decision of an association
of undertakings within the meaning of Article 101(1):
Case 45/85 Verband der Sachversicherer eV v
Commission of the European Communities [1987] ECR
405 at [32]. The AFA considers it clear that Regulation
7(3) reflects such an intention:
 Fragments of Complaint (2)

First, FIFA has chosen to make its recommendation by

way of binding Regulations which its members associations
are required to implement in their respective territories,
such that the recommendation will be directed at all
professional football clubs in the market: the intent to co-
ordinate the price conduct of those clubs is obvious.

Secondly, FIFAs recommendation has no plausible

purpose other than such price co-ordination. Unlike its
predecessor provisions in the 2008 Regulations and the
2001 Regulations, Regulation 7 of the Intermediaries
Regulations cannot even arguably be said to be intended to
create a subsidiary mechanism for the resolution of
disputes: the dispute resolution provision has been
abolished.
 Fragments of Complaint (3)

Among the non-exhaustive list of abusive conduct in Article

102 is directly or indirectly imposing unfair purchase or
selling prices or other unfair trading conditions. A typical
form of abuse is where a dominant seller imposes unfairly
high prices upon its purchasers. Equally, a purchaser may
abuse its dominant position on the market in relation to its
suppliers: Case T-219/99 British Airways plc v Commission
[2003] ECR II-5917 at [101], upheld by the Court of Justice
on appeal as C-95/04 P [2007] ECR I-2331. The AFA
considers that through their position of collective
dominance (as FIFA) on the market for football agents
services, professional football clubs are doing just that by
imposing Regulation 7 of the Intermediaries Regulations
upon other market participants.
 Wouters & Meca-Medina
Step 1. Is the sports association that adopted the rule to be considered an
undertaking or an association of undertakings?
a. The sports association is an undertaking to the extent it carries out an economic
activity itself (e.g., the selling of broadcasting rights).
b. The sports association is an association of undertakings if its members carry out an
economic activity. In this respect, the question will become relevant to what extent the sport
in which the members (usually clubs/teams or athletes) are active can be considered an
economic activity and to what extent the members exercise economic activity. In the absence
of economic activity, Articles 81 and 82 EC do not apply.
Step 2. Does the rule in question restrict competition within the meaning of Article
101(1) EC or constitute an abuse of a dominant position under Article 102 EC?
This will depend, in application of the principles established in the Wouters judgment, on the
following factors:
a. the overall context in which the rule was adopted or produces its effects and its objectives;
b. whether the restrictions caused by the rule are inherent in the pursuit of the objectives;
and
c. whether the rule is proportionate in light of the objective pursued.
Step 3. Is trade between Member States affected?
Step 4: Does the rule fulfil the conditions of Article 101(3) EC? (enhance
competition?)
 However, what has happened in
practice?
FIFA leaves a loophole in the RWWI: FAs may go
beyond these rules
This means that every country has created own
rules
Tour Dhorizon: focus on
Commission
Registration
Big 5 competitions, Portugal, Netherlands, Czech Rep,
Cyprus
Germany
Landesgericht Frankfurt Rogon vs DFB
30/4/2015
Main outcome:
No implications of the rules on agents, not a member of
the DFB
Payments in relation to activities for minors must be
allowed, otherwise there is an opposite effect
Sell-on clauses are allowed
Share in transfer fee is not allowed
Regs in general are allowed
 New DevelopmentUEFA enters the
scene
http://ec.europa.eu/sport/news/2014/docs/uefa2014_en.pdf art. 2.10

The new FIFA regulations on working with intermediaries, which will replace the
current FIFA regulations on agents, will apply as of April 2015. These regulations will
set out minimum requirements for national associations to follow, shifting the
responsibilities totally to the national associations.
Bearing in mind that the possibility is given to apply higher standards than those
recommended, a European approach could be taken on this subject ensuring that
these higher standards are applied across Europe by UEFAs member associations.
The European stakeholders have agreed with this approach and to take this matter
forward to have a strengthened set of regulations across the UEFA territory,
ensuring a uniform approach in the 54 UEFA member associations.
The following items have been identified as needing to be addressed:
- Potential mandatory cap on fees for intermediaries (the current FIFA draft only
refers to a recommendation of 3%). This cap should be realistic and reflect
reasonable and proportionate market values
- Transparency and disclosure mechanisms should be enhanced
- Enforcement of the regulations and related sanctions need to be considered
- Protection of minors
- Other items TBD
Structure of the group and relation to Social DialogueCBA along the lines of the
US Model?
 Threats (1) ILO

Intermediary Declaration clause 1 jo. ILO Convention on Private Employment

Agencies:
Article 1
1. For the purpose of this Convention the term private employment agency
means any natural or legal person, independent of the public authorities, which
provides one or more of the following labour market services:
(a) services for matching offers of and applications for employment, without
the private employment agency becoming a party to the employment
relationships which may arise therefrom;
(b) services consisting of employing workers with a view to making them
available to a third party, who may be a natural or legal person (referred to
below as a "user enterprise") which assigns their tasks and supervises the
execution of these tasks;
(c) other services relating to jobseeking, determined by the competent
authority after consulting the most representative employers and workers
organizations, such as the provision of information, that do not set out to
match specific offers of and applications for employment.
2. For the purpose of this Convention, the term workers includes jobseekers.
 Threats (2) ILO

Article 7
1. Private employment agencies shall not charge directly or
indirectly, in whole or in part, any fees or costs to workers.
2. In the interest of the workers concerned, and after consulting
the most representative organizations of employers and
workers, the competent authority may authorize exceptions to
the provisions of paragraph 1 above in respect of certain
categories of workers, as well as specified types of services
provided by private employment agencies.
3. A Member which has authorized exceptions under paragraph
2 above shall, in its reports under article 22 of the
Constitution of the International Labour Organization, provide
information on such exceptions and give the reasons therefor.
 Threats (3)

RWI not proportionate to the objectives pursued

and there are better alternatives
Court cases on a national level
International disputes
No control
No protection for the players
Registration different per country
Agents not bound to regulations
FIFA has gone mad
 Solutions?
Stick to general principles and to common sense:
Er moet gekeken worden naar het bredere belang van de sporter. Naar aanleiding
daarvan moet je kijken bij welk systeem je uitkomt. Dit moet een systeem zijn dat
meer kwaliteit waarborgt met een strak systeem van handhaving en internationale
werking. Voorwaarden hiervoor zijn:
Registratieplicht met kwaliteitseisen (aansprakelijkheidsverzekering)
Permanente educatie/cursussen
Kwaliteit borgen door bijv. certificaat/kwaliteitskeurmerk
Code of conduct (self-regulation)
Financial transparency (fixed percentage not useful)
Strikte handhaving en toezicht op nationaal niveau (het is van belang dat makelaars
vallen onder de regels van het ontvangende land).
Strengere straffen en regelgeving
Er moet sprake zijn van een internationaal minimum en kwaliteitsregistratie door
bonden.
De FIFA moet wereldwijd de ondergrens voorschrijven voor registratie- en
kwaliteitseisen en moet de door de bonden opgelegde sancties wereldwijd
effectueren

-BASIS FOR CONSENSUS DISCUSSION ON THE LEVEL OF GERMANY AND THE

NETHERLANDS-
GERMANY TAKES THE LEAD TO IMPLEMENT AND PROMOTE
Routes for implementation on EU level
and pitfalls?
Not a level playing field?
Social Dialogue? Take a look at the composition of
the UEFA professional football strategy council!
DISCUSSION!

THANK YOU!

Roberto Branco Martins

r.c.brancomartins@uva.nl
+31641273859