Regulating Agents’ Activity Through a National Law


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Texto de la conferencia brindada el 31 de Mayo de 2013, en el marco del “FIRST AIAF SEMINAR. What regulations for Football agents and Third-Party Player Ownership in football?”, organizado por la Association Internationale des Avocats du Football (AIAF), en París, Francia.

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Regulating Agents’ Activity Through a National Law

  1. 1. 1 “Regulating agents’ activity through a national law” by Martin Auletta 1) Introduction. Good morning to everyone. First of all, I would like to thank AIAF for the invitation to participate in this seminar. I want also to congratulate the authorities of AIAF for the great work they have been doing since the founding of this Association and for the excellent organization of this event. I would like to apologize in advance for any inconvenience that my English may cause you. I’m Argentine and English is not my native language, but as a football player would say, I promise I will do my best hoping that everybody can understand me. You already know that there are different options available in order to regulate the activity of football agents. A few minutes ago, we have listened the very interesting presentations of Patricia MOYERSOEN and Jean-Michel MARMAYOU, analyzing the possibility to establish an international regulation. We have just listened Stephen SAMPSON´s very interesting insight on this issue. And in a few minutes we will hear Omar ONGARO and Mark GODDARD explaining FIFA's position on this subject. They will tell us which alternatives FIFA is considering in order to regulate agents’ activity. In my case, I will focus exclusively in the possibility of regulating the agents’ activity through a national law. Since we come from different countries with different realities, the task is not easy, because what in some countries may be considered new and original, in others other countries may already exist. Being in Paris, we can take France as an example of what I just said… In France, you have already a national law that regulates sports agents’ activity. In the opposite corner, we can put my country, Argentina, where there is no law deals with this topic. Therefore, my goal today is to share some ideas with you, in order to discuss them and to hear your commentaries on the subject, which I’m sure will be far more interesting than mine. 2) Issues that should be treated by the law. Some of the issues I think that should be treated in this law are the following: - Requirements to act as agent: the law must establish the requirements that shall be fulfilled to act as a sports agent, including the most controversial ones, such as the need to obtain a license, the validity period of the license, the possibility for legal persons to act as agent, the obligation to hire an insurance policy, etc.. Abogado Martin Auletta Martin Auletta
  2. 2. 2 - Representation contracts content: the law shall regulate all matters relating the contracts signed between agents and football players / clubs, such as maximum period of validity, formal requirements, forbidden and mandatory clauses, interpretative principles, etc.. - Legal nature of sports agency contracts: the law should define the contractual nature of the relationship between the agent and the principal, ending the discussion that goes between mandate, agency or brokerage contract. - Agents obligations and prohibitions: the law shall regulate controversial situations, such as "dual representation" (prohibited by FIFA, but permitted by the Football Association Agents Regulations -England-), inducement to breach of contract, etc.. - Representation of minors: the law should establish specific precautions aimed to protect minor players (minimum age to enter in an agency contract, parental involvement, etc.). It would be desirable - also to regulate often conflicting practices, such as allowance payments made by agents to the player and / or his family. - Agent remuneration: the law shall regulate controversial issues regarding the agent payment, such as the possibility of being paid by the player and the club for the same transfer, the minimum and maximum fee an agent could charge, etc. - Control system: it’s very important that the law includes strong controls over the agents’ activities, to ensure the respect and observance of the regulations. - Effective sanctions: it’s equally important that the law implement effective sanctions to punish any breach of its regulations. The penalties may range from the imposition of disciplinary or economic sanctions to the nullity of the contract. - International cooperation: the international nature of the agent s’ activities makes necessary to implement international mechanism of control and cooperation between different countries. 3) Advantages of a national law. There is no such thing as the “perfect regulation system”. Each and every option to regulate the agents’ activity has advantages and disadvantages. In my opinion, the possibility of regulating the agents’ activity through a national law is one of the best options available. Many of the actual problems could find solution in this law. Let’s see some of the advantages of this kind of regulation: - Mandatory rules: FIFA has admitted that its regulation has failed, because only 25-30% of the transfers involved licensed agents. In many countries, national football associations are not empowered to establish restrictions to any economic activity. This is the reason why, in some countries, the intervention of an agent with no license is considered legal and valid by Courts of Justice. This situation cannot happen if the agents’ activity is regulated in a national law. Every State law is mandatory for everyone. So if a national law establishes the obligation to get a license, whoever wants to act as an agent will have to get that Abogado Martin Auletta Martin Auletta
  3. 3. 3 license. The intervention of an unlicensed agent in a transfer or contract negotiation could then be considered invalid. - Effective control and punishment: since its provisions are mandatory, the control mechanism and the punishments provided by this law will be more effective than the ones included in sports federations’ regulations. - Complementarity with sports federations rules: establishing a national law for agents’ activities does not necessarily prevent the coexistence with sport federations agents rules. On the contrary, this law could establish a minimum regulatory framework and delegated regulatory development in the sports federations. This could also work as a solution in countries like Argentina, where sports federations are not legally entitled to regulate sports agents’ activities. - Greater application scope: although this is an International Association for Football Lawyers, I think we should think not only in football but also in other professional sports as well. In this sense, this national law could establish the regulatory framework of “sports agents” activity, not limited to any particular sport. As I said before, the regulatory development for each sport could be established by sports federations. - Better protection for players and clubs, more transparency and professionalism in football business, improving its image: all the foregoing will certainly increase the protection for players and clubs, will help to increase the professionalism of agents and will improve professional football image in the public. In summary, it will benefit all actors related in any way to football. 4) Disadvantages of a national law. Now, let's see some possible disadvantages of implementing a national law for agents’ activity: - Multiplicity of regulations with different criteria: allowing each country to sanction its own national regulation could generate a multiplicity of agents’ regulations with different criteria. Some of them could be contradictory. Considering the international character of agents activity, this could be a real problem. But we should ask to ourselves: is this a serious problem? If a country decides to pass a law that regulates the activity of agents, can anyone prevent it? The answer is simple: NO. Nowadays, we have already regulations with different requirements to act as an agent or different provisions regarding their activity. And this has caused no major problems. - International control difficulties: some people think that the only way to control effectively an international activity like this is implementing an international control. I do not agree. If each country controls agents’ activities in a proper way, we shouldn’t have any real problem. Of course, it would be certainly useful to establish proper communication and coordination between national authorities. 5) Final words. Abogado Martin Auletta Martin Auletta
  4. 4. Abogado Martin Auletta Martin Auletta 4 Until today, most of regulations for agent’s activity come from the sports federations. Only a few countries, like France or Portugal, have a State law that regulates this activity. If we are here, today, discussing this subject, it’s clearly because the actual regulatory framework for agents is insufficient and ineffective. FIFA has already said it. We need a change. We need to stop asking FIFA and sports federations’ solutions they are not capable to provide. And we should start demanding these solutions to the public authorities, the only ones legally qualified to establish mandatory regulations to an economic activity. And the only ones properly equipped to combat and punish public offences. We should work to include football regulations needs in the agenda of every government of every country. Football is not only the most beautiful sport but also a multimillionaire industry. The football industry must learn from other industries how to lobby in favor of its own interests, in order to get appropriate legislation. We should aim to introduce Sports Law as a subject in every Law school. We need to raise public awareness about Sports Law regulation needs. I know what I’m proposing it’s not easy to accomplish. Nevertheless, I think it’s the natural step Sports Law should take. This new Association, AIAF, can make a lot to get this done. I really hope it will. Thank you very much for your attention.