Italy.

• Author: Ferrari, Luca

1. Introduction.

   On to December 2000 FIFA issued new regulations for players' agents, effective the 1 March 2001, which were subsequently amended in 2002. The changes were stimulated by the E.U. Commission's investigation on the compliance of the Regulation with articles 81 and 8z of the Treaty of Rome, which had been prompted by an application of a French citizen. (1)

   The FIFA Regulations control both the eligibility to the agent's profession and the performance of the agent's activity. At the same time FIFA has defined agents' duties in a "Code of Conduct", which imposes professional and ethical standards. The new Regulations contain the requirement that the National Associations enact the set of rules described through special national provisions.

   The Italian Football Association (FIGC) had already regulated the activity of players' agents (2). When FIGC enacted FIFA Regulations it did not simply translate them in Italian, but rather amended preexisting domestic rules in light of the guidelines set forth at the international level. Apparently deeming Italian Regulations substantially identical to its own, FIFA did not make them the object of specific evaluation and approval. This is particularly unfortunate as in fact there are several provisions of the Italian Regulations, as we shall see, which do not appear entirely compatible with FIFA rules.

   Now FIGC is preparing further modifications to the enforced regulation in compliance with the guidelines of the Italian Antitrust Authority (3). The focus of this revision is on the conditions for the exercise of the players' agent profession. This matter is very problematical, so at the moment FIGC is not able to provide a term for the approval of the new set of rules.

2. FIGC Players' Agents Regulations and its scope.

   On 22 November 2005 the Italian Football Association issued the Players' Agents Regulations to govern the activity of agents working in a national and international context (article 1, 1st paragraph). The enacting provision does not clearly identify the scope of the regulations, thus it is not sure whether the provision refers to Italian agents or foreign agents, or rather to registered or non-registered agents notwithstanding their nationality, or both. Another provision establishes more properly that "players and clubs can avail themselves of the services of an agent if he has a regular licence issued by FIGC or by an other national football association" (article 3, 1st paragraph). The possession of a licence--obtained anywhere in compliance with FIFA Regulations--appears sufficient to carry on the profession in Italy, although a different conclusion could be authorized by a literal interpretation of the article 5, 1st paragraph, and of the article 13, 1st paragraph, (4) which indicates that a player or a club can only utilise the services of a person enrolled in the FIGC Register of practising agents. This fallacious conclusion would follow from the confusing use of the defined term "Albo", indicating the FIGC Register of licensed agents, in both provisions. Instead we prefer to adopt the meaning of article 3, 1st paragraph, described above, adhering to the principle that, between two possibly conflicting interpretations, the interpreter must choose the one that is valid and enforceable. Therefore, the two references to the FIGC Register should be considered as two references to the register of any national football association. This interpretation is compulsory to bring the Italian rules in line with the international ones and it corresponds to the FIFA's reading and application of the international regulations especially of article 22, par. 1 (Ch. IV Disputes).

   Article 22, par. I of FIFA Regulations defines national disputes as those where the parties involved (player, agent or club) are both registered with the same national association. National disputes are submitted to the judicial bodies of the relevant national association. This, as we will see, is significant in terms of applicable rules, in those few Countries, including Italy, where special national regulations -different from the FIFA ones- have been enacted. In fact, all other disputes are "international disputes" and submitted to the FIFA's Players Status Committee. According to what was referred to us by the FIFA's Legal Services, the Players Status Committee applies the FIFA Regulations to any dispute under its jurisdiction, i.e. to any dispute in which the parties are not registered for the same national association. On reverse "national disputes" appear the only ones in which national regulations, if enacted by the relevant association, are applicable.

   In conclusion, Italian Players' Agents Regulations and any other national regulations apply only where the agent and his client are both registered with the same national association, whereas it is perfectly lawful for Italians players or clubs to hire a foreign agent under FIFA Regulations.

   Article 3 of the FIGC Regulations defines an agent as a person who, in possession of a contract given in compliance of the formal requisites of the same Regulations, pursues players' interests by conducting activities of negotiation (previously "mediation") and advice in order to consummate sports contracts (5).

   The original version of article 3 was recently modified by FIGC. The word "mediation" appeared as an activity of the players' agent in the previous text. In fact, the profession of mediator and the profession of player's agent are different (6), beginning with the standard that a player's agent signs a contract with only one party (7). Generally the agent will represent this party in the negotiation. Moreover the agent may represent his client not only in a single transaction but repeatedly to promote one or more transactions during the validity period of the representation contract. Only this party can pay the agent for his assistance.

   The regulatory listing of an agent's typical activities is completed by article 3, 4th paragraph. It establishes that the agent may look after the interest of a club under a regular contract. This disposition refers to the possibility that a club employs an agent "to promote the acquisition or the transfer of a player". This wording appears restrictive: while it is clear that a club may appoint an agent to employ a free player or a player under contract with another club, as well as to transfer one of its players to another club, it is uncertain whether a club may appoint an agent to negotiate a new contract with a player already employed by that club.

3. The FIGC reception and implementation of the FIFA Regulations.

   3.1 The licensing procedure.

   The acquisition of a licence is an essential requisite to exercise the agent's profession (article 3, 1st paragraph). Upon application to Players' Agents Commissions of those seeking to become a players' agent the FIGC sets written examinations twice a year. The announcement of the examination identifies requirements for eligibility to the exam failing which the applicant is rejected without further inquiry (article 6). One of these requirements is the residence of the applicant in Italy for at least two years. Thanks to the recent decision of the Court of first Instance of the European Communities (10), this time condition is not required for the admission of a candidate who is a citizen of a Member State.

   Moreover, under article 7, a candidate holding a position with FIFA, FIGC or with any club is disqualified by reason of "incompatibility" (article 7, 1st paragraph).

   The examination is (or should be) held on a single date worldwide. The National Association determines the results of the tests. In Italy, the last session of the exam yielded a very small percentage of successful candidates". In view of the fact that the number of applications sent to the Commission has constantly increased, this severe evaluation standard, which should reflect a special interest of FIGC to induce maximum preparation of the applicant to guarantee the agents' professionalism, may conceal protectionist intents. The possibility of an artificial barrier to limit the admission of new agents, to the advantage of the ones already in trade, is one of the matters of interest to the Italian Antitrust Authority. (12)

   After successful examination the candidate obtains admission in the FICG Register, whereupon he or she subscribes to the relevant Code of Conduct, provides an insurance policy for the professional liability and pays the relevant tax to the Commission. The candidate forfeits admission if the application form with the necessary documents is not delivered to the Secretariat of the Commission within six months from the date of the exam's approval (article 8, 4th paragraph).

   The institution of the Agents' Register poses serious conflict with the Italian Law. Indeed, the FIGC has instituted a new register of a professional activity notwithstanding article 2229 of the Civil Code, which states "only the law can constitute new registers of intellectual professions". Article 33 of the Italian Constitution declares also "a national exam is prescribed ... for the legal exercise of a professional activity".

   The Players' Agents' profession may qualify as a intellectual activity, given that it shares many points in common with the commercial agents' profession. Because it is established and administered by regulation of a private association (FIGC and FIFA) and not by an Italian law, the institution of an independent register and of a new regulated and restricted intellectual profession appears unlawful.

   However, the particular features of the agents' profession provides an argument to refute the potential invalidity of the FIGC Regulations, as players' agents operate in a specialized contest, the sportive one. Thus it could be considered as a further manifestation of the autonomy of the sportive institutions. Yet this characterisation is very weak, especially after the agents'...