Players' agents and the regulatory framework on corruption in International sports law.

• Author: van der Meij, Ronny-V.
• Position: ARTICLES - Report

1. Introduction

   1.1. Description of the thesis and the subject

   During the last decade we have seen a significant commercialization in sports all over the world. The sports stars of today are earning more than their predecessors could even dream of. an illustrating example can be seen in football where star players like Jimmy Greaves and Dennis Law earned a little more 20 BP a week in the 1960s, whereas one of today's top players, Zlatan Ibrahimovich, is paid around 170000 BP per week under his current contract with Inter Milan. (1) Even compensated for the inflation, this example illustrates the tremendous increase of money circulating in many sports today compared to relatively recent times.

   The increased commercialization has lead to growth in the demand for expertise when deals are concluded among the various stakeholders in football, thus giving birth to the profession called sports (players') agents. In a global perspective the perception of the need for this profession has developed in line with the commercialization of sports. In the United States, where the commercialization of sports started prior to the European, the profession came into prominence in the 1960s and 1970. (2) In Europe, agents faced greater skepticism and for a long time clubs and managers refused to negotiate with players that used agents. The following quotation from the legendary manager Brian Clough gives a good indication of the how the atmosphere was during his era (1975-1993) as coach:

   "If a player had said to Bill Shankly 'I've got speak to my agent', Bill would have hit him. and I would have held him while he hit him". (3)

   However as the transactions have become more and more complex and involve more and more money the profession has gained terrain also in Europe the last 20 years, and today you will hardly see a transfer where an agent is not involved in one way or another.

   Sociological studies have shown that changes in a business sector such as we have seen in International sports will generally call for the creation of a regulatory framework. (4) That this is the case in sports today is inter alia observed by Beloff, a reputable scholar and practitioner in the field of sports law, that describes the increased legalism as a natural function of raised financial stakes produced by increased sophistication, particularly of a technological nature, and by a ready market fueled by the demands of a public whose craving for sports appears insatiable. (5)

   Thus we have recently seen many incentives to regulate sports agents. However, the International dimension complicates the legislative process because in addition to the questions of how the profession should be regulated, the crucial question of competence arises. In International sports law there are three tiers of agent regulation today, namely: International law, national law and the law of the sports bodies. (6) Between these tires there are problems connected to jurisdiction and contradictions giving rise to conflicts of law requiring one to consider, firstly; the substantive question of whether or not a conflict exists, and secondly; which set of rules will prevail in case of a conflict between the set of rules.

   1.2. Terminology, scope and the further structuring of the analysis.

   1.2.1. Corruption

   According to the Miriam Webster dictionary corruption can be defined as: "impairment of integrity, virtue or moral principle; depravity, decay, and/or an inducement to wrong by improper or unlawful means, a departure from the original or from what is pure or correct, and/or an agency or influence that corrupts". (7) This wide definition that will be used in the following covers a broad range of activities. With regard to Players' agents accusations of corruption normally arises because the agent makes-or at least is accused of having made-use of means that are contrary to norms deriving from one of the 3 tires of legislation that governs the profession in order to facilitate a transfer. a violation of one of the 3 tires will constitute an "inducement to wrong by improper or unlawful means", implying an action may be caught by the scope of this article although it might not represent what one would normally think of as corruption in everyday language.

   The forms of corruption that has drawn most negative attention to the profession of players' agents are the phenomenon's called bungs, tapping up and dual representation. In addition, attention has been drawn to problems concerning protection of minors both by the media and at EU level. In chapter 2 an elaboration on this set of problems will be given to identify obstacles concerning the attempts of regulation and the enforcement of these. Whereas chapter 3 deals with problems faced by stakeholders as a consequence of the International dimension of the problems we are dealing with.

   1.2.2. International sports law

   To give the reader an understanding of the concept of 'international sports law' it is appropriate to take a closer look at the individual components, hereunder the meaning of 'sport' and "sports law". To discuss these terms in depth will fall outside the scope of this essay, but as they give rise to heavily discussed topics in the legal world of sports a brief overview is in place.

   The term 'sports' has a number of legal implications and there might be financial and legal advantages implied for an activity that can be defined as sport. (8) According to the Olympic charter only "sports" can be part of the Olympic program; an example that clearly shows the importance of the term legally as well as financially. (9) Despite the need for a definition there is no agreed and precise definition of the term, and attempts to give a definition often become vague or futile. a common definition is that sport is a "Physical activity that is governed by a set of rules or customs and often engaged in competitively" (10) Such a wide definition will embrace activities that are quite different from what one normally would think of as sports. a good example can be seen in a case from England where a defendant argued that sadomasochistic homosexual activity was to be considered as sports. (11) Such activity is probably quite far from what people would think of as the normal meaning of 'sport', but the definition above may fit as it could be possible to prove that it involves 'physical activity' and 'a set of rules'.

   In the absence of a common definition, the legal practitioner will have to seek guidance in sources relevant to the rules he is dealing with. The following analysis will be focused on football because it represents the field of sports where problems connected to agents regularly rises due to its degree of commercialization. Although the focus is on football it is likely that the views presented will be of relevance in connection with transfers of players in other popular team sports such as basketball and ice hockey, but as all of these must be said to fall in the core of the word "sports", there is no need for a precise definition of the term in the following.

   In academic circles a big issue has been made of whether or not one can speak about existence of such a thing as sports law. This discussion contains two questions, firstly, whether sports law can be considered a particular branch of law such as for instance contract law, torts or mercantile law.

   Secondly, whether it is appropriate to speak about a lex sportiva implying that the case law of the Court of arbitration for sports (hereinafter referred to as CAS) is developing into an independent source of law in the form of custom such as for instance lex mercatoria.

   The CAS is an arbitration tribunal situated in Lausanne, Switzerland that began its operations on the 30 June 1984. The idea behind this tribunal was created by the former International Olympic Committee President Juan Antonio Samaranch, who identified the need for a specialized body to resolve sporting disputes outside the normal court systems, hoping that the CAS should become the supreme court of the world of sport. (12) It might be a bit early to conclude with regards to whether these goals are yet achieved, but that it is going in that direction is indicated by the significant increase of cases registered with the CAS the later years (only from 2003 to 2004 the increase was 149 %.). (13)

   In this essay sports law will be considered as: a legislative and transnational legal system created by sporting federations which legitimacy derives from the contractual relationship between the parties. (14) as such sports law is not considered hermetically sealed field of law but has a more or less cohesive body influenced by general rules of national and International law. (15) This definition implies that my conception of sports law is that it is a particular legal system where rules are generally given and enforced by sporting organizations and CAS, but subject to the limitation of the private autonomy.

   When case law is being used it will not be referred to the term lex sportiva as the word in the opinion of the author only serve to blur the reality.

   On the one hand it is clear-and seems to be agreed-that CAS jurisprudence does not have currency as stare decisis. (16) On the other hand it is equally clear that CAS give, and should give weight to previous cases based on the values of; the efficiency in legal process, predictability or stability of expectations and equal treatment of similarly treated bodies. That CAS itself is of this opinion can be seen in a case concerning the Norwegian Olympic committee where it holds that: "CAS jurisprudence has notably refined and developed a number of principles of sports law, such as the concepts of strict liability (in doping cases) and fairness, which might be deemed as a part of an emerging 'lex sportiva'. Since CAS jurisprudence is largely based on a variety of sports regulations, the parties' reliance on the CAS precedents in their pleadings amounts to the choice...