Asser International Sports Law Blog

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

Anti-Doping in Times of COVID-19: A Difficult Balancing Exercise for WADA - By Marjolaine Viret

Editor's note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences.


I.               Introduction

The COVID-19 pandemic has shaken the manner in which we approach human interactions that suppose close and prolonged physical contact. Across the world, authorities are having to design ways to resume essential activities without jeopardising participants’ health, all the while guaranteeing that other fundamental rights are paid due respect. The fight against doping is no exception. Anti-doping organizations – whether public or private – have to be held to the same standards, including respect for physical integrity and privacy, and considerate application of the cornerstone principle of proportionality.

Throughout this global crisis, the World Anti-Doping Agency (‘WADA’) has carefully monitored the situation, providing anti-doping organizations and athletes with updates and advice. On 6 May 2020, WADA issued the document called ‘ADO Guidance for Resuming Testing’ (‘COVID Guidance’). A COVID-19 ‘Q&A’ for athletes (‘Athlete Q&A’) is also available on WADA’s website, and has been last updated on 25 May 2020. This article focuses on these two latest documents, and analyses the solutions proposed therein, and their impact on athletes.

Like many public or private recommendations issued for other societal activities, the WADA COVID Guidance is primarily aimed at conducting doping control while limiting the risk of transmission of the virus and ensuing harm to individuals. More specifically, one can identify two situations of interest for athletes that are notified for testing:

  1. The athlete has or suspects that they may have been infected with COVID-19, or has come in close contact with someone having COVID-19;
  2. The athlete fears to be in touch with doping control personnel that may be infected with COVID-19.

Quite obviously, either situation has the potential to create significant challenges when it comes to balancing the interests of anti-doping, with individual rights and data protection concerns. This article summarises how the latest WADA COVID Guidance and Athlete Q&A address both situations. It explores how the solutions suggested fit in with the WADA regulatory framework and how these might be assessed from a legal perspective.

The focus will be on the hypothesis in which international sports federations – i.e. private entities usually organised as associations or similar structures – are asked to implement the COVID Guidance within their sport. National anti-doping organizations are strongly embedded in their national legal system and their status and obligations as public or semi-public organisations are likely to be much more dependent on the legislative landscape put in place to deal with the COVID-19 pandemic in each country. Nevertheless, the general principles described in this article would apply to all anti-doping organizations alike, whether at international or national level. More...



How Data Protection Crystallises Key Legal Challenges in Anti-Doping - By Marjolaine Viret

Editor's Note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences. Her interests focus on interdisciplinary approaches as a way of designing effective solutions in the field of anti-doping and other science-based domains. Her book “Evidence in Anti-Doping at the Intersection of Science & Law” was published through T.M.C Asser Press / Springer in late 2015. She participates as a co-author on a project hosted by the University of Neuchâtel to produce the first article-by-article legal commentary of the 2021 World Anti-Doping Code. In her practice, she regularly advises international federations and other sports organisations on doping and other regulatory matters, in particular on aspects of scientific evidence, privacy or research regulation. She also has experience assisting clients in arbitration proceedings before the Court of Arbitration for Sport or other sport tribunals.


Since the spectre of the EU General Data Protection Regulation (‘GDPR’) has loomed over the sports sector,[1] a new wind seems to be blowing on anti-doping, with a palpable growing interest for stakes involved in data processing. Nothing that would quite qualify as a wind of change yet, but a gentle breeze of awareness at the very least.

Though the GDPR does mention the fight against doping in sport as a potential matter of public health in its recitals,[2] EU authorities have not gone so far as to create a standalone ground on which anti-doping organisations could rely to legitimise their data processing. Whether or not anti-doping organisations have a basis to process personal data – and specifically sensitive data – as part of their anti-doping activities, thus remains dependent on the peculiarities of each national law. Even anti-doping organisations that are incorporated outside the EU are affected to the extent they process data about athletes in the EU.[3] This includes international sports federations, many of which are organised as private associations under Swiss law. Moreover, the Swiss Data Protection Act (‘DPA’) is currently under review, and the revised legal framework should largely mirror the GDPR, subject to a few Swiss peculiarities. All anti-doping organisations undertake at a minimum to abide by the WADA International Standard for Privacy and the Protection of Personal Information (‘ISPPPI’), which has been adapted with effect to 1 June 2018 and enshrines requirements similar to those of the GDPR. However, the ISPPPI stops short of actually referring to the GDPR and leaves discretion for anti-doping organisations to adapt to other legislative environments.

The purpose of this blog is not to offer a detailed analysis of the requirements that anti-doping organisations must abide by under data protection laws, but to highlight how issues around data processing have come to crystallise key challenges that anti-doping organisations face globally. Some of these challenges have been on the table since the adoption of the first edition of the World Anti-Doping Code (‘WADC’) but are now exposed in the unforgiving light of data protection requirements. More...



International and European Sports Law – Monthly Report – January 2019 - By Tomáš Grell

 Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 

The Headlines

#Save(d)Hakeem

The plight of Hakeem al-Araibi – the 25-year-old refugee footballer who was arrested last November in Bangkok upon his arrival from Australia on the basis of a red notice issued by Interpol in contravention of its own policies which afford protection to refugees and asylum-seekers – continued throughout the month of January. Bahrain – the country Hakeem al-Araibi fled in 2014 due to a (well-founded) fear of persecution stemming from his previous experience when he was imprisoned and tortured as part of the crackdown on pro-democracy athletes who had protested against the royal family during the Arab spring – maintained a firm stance, demanding that Hakeem be extradited to serve a prison sentence over a conviction for vandalism charges, which was allegedly based on coerced confessions and ignored evidence.

While international sports governing bodies were critised from the very beginning for not using enough leverage with the governments of Bahrain and Thailand to ensure that Hakeem’s human rights are protected, they have gradually added their voice to the intense campaign for Hakeem’s release led by civil society groups. FIFA, for example, has sent a letter directly to the Prime Minister of Thailand, urging the Thai authorities ‘to take the necessary steps to ensure that Mr al-Araibi is allowed to return safely to Australia at the earliest possible moment, in accordance with the relevant international standards’. Yet many activists have found this action insufficient and called for sporting sanctions to be imposed on the national football associations of Bahrain and Thailand.      

When it looked like Hakeem will continue to be detained in Thailand at least until April this year, the news broke that the Thai authorities agreed to release Hakeem due to the fact that for now the Bahraini government had given up on the idea of bringing Hakeem ‘home’ – a moment that was praised as historic for the sport and human rights movement.

Russia avoids further sanctions from WADA despite missing the deadline for handing over doping data from the Moscow laboratory 

WADA has been back in turmoil ever since the new year began as the Russian authorities failed to provide it with access to crucial doping data from the former Moscow laboratory within the required deadline which expired on 31 December 2018, insisting that the equipment WADA intended to use for the data extraction was not certified under Russian law. The Russian Anti-Doping Agency thus failed to meet one of the two conditions under which its three-year suspension was controversially lifted in September 2018. The missed deadline sparked outrage among many athletes and national anti-doping organisations, who blamed WADA for not applying enough muscle against the Russian authorities.

Following the expiry of the respective deadline, it appeared that further sanctions could be imposed on the Russian Anti-Doping Agency, but such an option was on the table only until WADA finally managed to access the Moscow laboratory and retrieve the doping data on 17 January 2019. Shortly thereafter, WADA President Sir Craig Reedie hailed the progress as a major breakthrough for clean sport and members of the WADA Executive Committee agreed that no further sanctions were needed despite the missed deadline. However, doubts remain as to whether the data have not been manipulated. Before WADA delivers on its promise and builds strong cases against the athletes who doped – to be handled by international sports federations – it first needs to do its homework and verify whether the retrieved data are indeed genuine.  

British track cyclist Jessica Varnish not an employee according to UK employment tribunal

On 16 January 2019, an employment tribunal in Manchester rendered a judgment with wider implications for athletes and sports governing bodies in the United Kingdom, ruling that the female track cyclist Jessica Varnish was neither an employee nor a worker of the national governing body British Cycling and the funding agency UK Sport. The 28-year-old multiple medal winner from the world and European championships takes part in professional sport as an independent contractor but sought to establish before the tribunal that she was in fact an employee of the two organisations. This would enable her to sue either organisation for unfair dismissal as she was dropped from the British cycling squad for the 2016 Olympic Games in Rio de Janeiro and her funding agreement was not renewed, allegedly in response to her critical remarks about some of the previous coaching decisions.

The tribunal eventually dismissed her challenge, concluding that ‘she was not personally performing work provided by the respondent – rather she was personally performing a commitment to train in accordance with the individual rider agreement in the hope of achieving success at international competitions’. Despite the outcome of the dispute, Jessica Varnish has insisted that her legal challenge contributed to a positive change in the structure, policies and personnel of British Cycling and UK Sport, while both organisations have communicated they had already taken action to strengthen the duty of care and welfare provided to athletes.  

 

Sports Law Related Decisions


Official Documents and Press Releases

 

In the news

Doping

Football

Other


Academic Materials

International Sports Law Journal

Other


Blog

Law in Sport

Other

 

Upcoming Events

International and European Sports Law – Monthly Report – November 2017. By Tomáš Grell

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 

The Headlines

FIFA and FIFPro sign landmark agreement

A six-year cooperation agreement concluded between FIFA and FIFPro on 6 November 2017 puts an end to protracted negotiations which began after the latter had filed in September 2015 a complaint with the European Commission, challenging the validity of the FIFA transfer system under EU competition law. This agreement, together with an accord reached between FIFA, FIFPro, the European Club Association, and the World Leagues Forum under the umbrella of the FIFA Football Stakeholders Committee, should help streamline dispute resolution between players and clubs, avoid abusive practices in the world of football, or contribute to the growth of professional women's football. In addition, the FIFA Football Stakeholders Committee is now expected to establish a task force to study and conduct a broader review of the transfer system. As part of the deal, FIFPro agreed to withdraw its EU competition law complaint.

FIFA strengthens its human rights commitment amid reports of journalists getting arrested in Russia

It is fair to say that human rights have been at the forefront of FIFA's agenda in 2017. Following the establishment of the Human Rights Advisory Board in March and the adoption of the Human Rights Policy in June this year, in November FIFA published the bidding regulations for the 2026 World Cup. Under these new regulations, member associations bidding to host the final tournament shall, inter alia, commit themselves to respecting all internationally recognised human rights in line with the United Nations Guiding Principles on Business and Human Rights or present a human rights strategy on how they intend to honour this commitment. Importantly, the human rights strategy must include a comprehensive report that is to be complemented and informed by a study elaborated by an independent expert organisation. Moreover, on 9 November 2017, the Human Rights Advisory Board published its first report in which it outlined several recommendations for FIFA on how to further strengthen its efforts to ensure respect for human rights.

While all these attempts to enhance human rights protection are no doubt praiseworthy, they have not yet produced the desired effect as reports of gross human rights abuses linked to FIFA's activities continue to emerge. Most recently, Human Rights Watch documented how Russian police arrested a newspaper editor and a human rights defender whose work focused on exposing World Cup-related corruption and exploitation of migrant construction workers. On a more positive note, a bit of hope comes with the announcement by a diverse coalition, including FIFA, UEFA, and the International Olympic Committee, of its intention to launch a new independent Centre for Sport and Human Rights in 2018.

More than 20 Russian athletes sanctioned by the Oswald Commission for anti-doping rule violations at the Sochi Games   

November has been a busy month for the International Olympic Committee, especially for its Oswald Commission. Established in July 2016 after the first part of the McLaren Independent Investigation Report had been published, the Oswald Commission is tasked with investigating the alleged doping violations by Russian athletes at the 2014 Winter Olympic Games in Sochi. Its first sanctions were handed down last month. As of 30 November 2017, the Commission chaired by the IOC Member Denis Oswald sanctioned 22 athletes (see here, here, here, here, here, and here) who competed at the Sochi Olympics in the following sports: biathlon, bobsleigh, cross country skiing, skeleton, and speed skating. The Commission published its first full decision on 27 November 2017 in the case against the cross country skier Alexander Legkov, a gold and silver medallist from the Sochi Olympics, who was ultimately banned for life from attending another Olympics.More...

Report from the first ISLJ Annual International Sports Law Conference - 26-27 October at the T.M.C. Asser Instituut

Close to 100 participants from 37 different countries attended the first ISLJ Annual International Sports Law Conference that took place on 26-27 October 2017 in The Hague. The two-day programme featured panels on the FIFA transfer system, the labour rights and relations in sport, the protection of human rights in sport, EU law and sport, the Court of Arbitration for Sport, and the world anti-doping system. On top of that, a number of keynote speakers presented their views on contemporary topics and challenges in international sports law. This report provides a brief summary of the conference for both those who could not come and those who participated and would like to relive their time spent at the T.M.C. Asser Institute.More...

International and European Sports Law – Monthly Report – September 2017. By Tomáš Grell

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 

The Headlines 

2024 and 2028 Olympic Games to be held in Paris and Los Angeles respectively

On 13 September 2017, the Session of the International Olympic Committee (IOC) held in Lima, Peru, elected Paris and Los Angeles as host cities of the 2024 and 2028 Olympic Games respectively. On this occasion, the IOC President Thomas Bach said that ''this historic double allocation is a 'win-win-win' situation for the city of Paris, the city of Los Angeles and the IOC''. The idea of a tripartite agreement whereby two editions of the Olympic Games would be awarded at the same time was presented by a working group of the IOC Vice-Presidents established in March 2017. Both Paris and Los Angeles have pledged to make the Olympic Games cost-efficient, in particular through the use of a record-breaking number of existing and temporary facilities. In addition to economic aspects, it will be worthwhile to keep an eye on how both cities will address human rights and other similar concerns that may arise in the run-up to the Olympic Games. More...

International and European Sports Law – Monthly Report – July and August 2017. By Tomáš Grell

 Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser.

 

The Headlines

ISLJ Annual Conference on International Sports Law 

On 26 and 27 October 2017, the T.M.C. Asser Institute in The Hague will host the first ever ISLJ Annual International Sports Law Conference. This year's edition will feature panels on the Court of Arbitration for Sport, the world anti-doping system, the FIFA transfer regulations, human rights and sports, the labour rights of athletes, and EU law and sport. We will also welcome the following distinguished keynote speakers:

  • Miguel Maduro, former Advocate General at the European Court of Justice and former head of the FIFA's Governance Committee;
  • Michael Beloff QC, English barrister known as one of the 'Godfathers' of sports law;
  • Stephen Weatherill, Professor at Oxford University and a scholarly authority on EU law and sport;
  • Richard McLaren, CAS Arbitrator, sports law scholar and former head of the World Anti-Doping Agency's investigation into the Russian doping scandal.

You will find all the necessary information related to the conference here. Do not forget to register as soon as possible if you want to secure a place on the international sports law pitch! [Please note that we have a limited amount of seats available, which will be attributed on a 'first come, first served' basis.] More...

International and European Sports Law – Monthly Report – June 2017. By Tomáš Grell

 Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 

The Headlines

 
ISLJ Annual Conference on International Sports Law

On 26 and 27 October, the T.M.C. Asser Institute in The Hague will host the first ever ISLJ Annual International Sports Law Conference. This year’s edition will feature panels on the Court of Arbitration for Sport, the world anti-doping system, the FIFA transfer regulations, human rights and sports, the labour rights of athletes, and EU law and sport. More...



International and European Sports Law – Monthly Report – March 2017. By Tomáš Grell

 Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 More...

Asser International Sports Law Blog | Football Intermediaries: Would a European centralized licensing system be a sustainable solution? - By Panagiotis Roumeliotis

Asser International Sports Law Blog

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

Football Intermediaries: Would a European centralized licensing system be a sustainable solution? - By Panagiotis Roumeliotis

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


Introduction

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

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

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


FIFA RWI

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

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


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

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

Registration

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

Burdensome character

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

Lack of qualification assessment 

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

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

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

Remuneration

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

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

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

Benchmark cons

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

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

Benchmark pros

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

Conflicts of interests 

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

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

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

Minors

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

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

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

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

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

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

Duration of the Representation Contract

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

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

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


Harmonization at European level

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

FAs Partnership

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

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

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

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

UEFA

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


Conclusions

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

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


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

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

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

[4] 2015 FIFA RWI, Preamble.

[5] 2015 FIFA RWI, Article 10.

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

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

[8] 2015 FIFA RWI, Preamble.

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

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

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

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

[13] RFEF Regulations, Article 4.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Comments are closed