Regulating players' agents: a global perspective.

• Author: Parrish, Richard

Three recurring themes have emerged in the contributions to this book: what are players' agents, why should they be regulated and how should they be regulated? The first question appears straightforward as agents perform similar functions throughout the world. Nevertheless, as the contributions reveal, the manner in which agents operate varies. The questions of why and how to regulate again reveals common themes but also considerable variations in patterns of regulation. Many of the contributors cite instances of agent abuse although on closer inspection we see that the forms of regulation employed by the governing bodies and the norms of industry practice can also cause problems. Are agents inherently corrupt or do the rules, as currently constituted, and the industry norms preclude agents from practicing within existing rules? By industry norms we are not referring to agent conduct but the conduct of clubs and players who engage their services in a manner inconsistent with current rules. Furthermore, have the regulators actually shown any great enthusiasm on clamping down on such practices? If indeed football has an 'agent problem', are not the regulators, the clubs and the players equally complicit? Questions of agent regulation therefore need to reflect the wider, and to some extent more uncomfortable, issues facing football. 'Cleaning up' the game and injecting much needed transparency into agent activity might be universally welcomed as a sound bite headline, but should the regulators recognise industry norms within the rules, thus guaranteeing genuine transparency, or should they ensure that industry norms reflect current industry rules? This debate can easily be juxtaposed. On the one hand, does firmness and prohibition maintain the integrity of the game? On the other, does flexibility and openness create transparency? The reality is surely that transparency equals integrity and in this respect there is therefore much to play for.

What are Players' Agents?

An agent is a person authorised to act for another when dealing with third parties. In theory, a players' agent is merely an intermediary ensuring the supply and demand for labour within sport is met. For a fee (commission), they assist players in finding clubs, or clubs in findings players. Who benefits from the work of agents? One the one hand a player (particularly a young player) negotiating a contract with a club without representation is disadvantaged as the power relationship between the negotiating parties is often stacked in favour of the club. For example, a player is unlikely to be familiar with the inner workings of a club including its existing pay structures. They are therefore more likely to succumb to pressure tactics used by the club and accept 'take it or leave it' contract offers. An agent, equipped with the relevant skills and knowledge, can significantly improve a players pay and conditions and can provide valuable career advice. Nevertheless, a similarly unequal power balance can emerge in the relationship between a player and an agent, particularly if a player becomes heavily reliant on their agent and their agent negotiates on their behalf without the knowledge of the player. In this instance, the old adage that an agent looks after the affairs of a player so that he can concentrate on his sporting duties simply means that a player-agent contract conceals the subordination of the player. A club can also benefit from employing the services of an agent. Although clubs often complain that agents unsettle players by encouraging their nomadic instincts and at the same time take large sums of money out of the game, clubs frequently use, and pay agents to attract new talent. Agents who work for clubs are often required to persuade players to accept terms favourable to the clubs. In some instances, agents act for a club whilst having a contract to act exclusively for a player, a clear conflict of interest. Such dual representation is prohibited by the FIFA Players Agent Regulations and amounts to a breach of contract with the player. Nevertheless, it is an industry practice and here lies an interesting starting point for our analysis. Not all players' agents are inherently corrupt, far from it. Perhaps many of the instances of agent 'abuse' detailed throughout this book are actually agents working to industry norms rather than abiding by industry rules. This is not to condone their actions but it does rather shift the analysis onto the sports regulators and how they make and enforce the rules, and also onto the clubs and players who are often complicit in the rule breaking.

In France, statute defines an agent as 'any person carrying on, occasionally or regularly, for valuable consideration, the activity of bringing together parties interested in the conclusion of a contract relating to the carrying on of a remunerated sports activity...'. Similarly, in other states statute stresses the intermediary role of an agent. The FIFA Regulations state that 'the players' agent is a natural person, who, for a fee, on a regular basis introduces a player to a club with a view to employment or introduces two clubs to one another with a view to concluding a transfer contract, in compliance with the provisions mentioned below'. Whilst these definitions describe the essence of an agent's activity, they do not tell the whole story and this has implications for the effectiveness with which intermediation laws are employed in sport. Brokering a deal between parties is often supplemented by so called 'related services', often called management services, the nature of which depends upon the needs of the sportsman or women. Thus whilst the rules of governing bodies attempt to regulate the intermediary activities of agents, the rules leave untouched the management services provided by agents.

In his contribution on Belgium, Frank Hendrickx considers an agent performs a number of services including (1) contract negotiation and mediation (employment contracts, sponsoring agreements, television rights etc; (2) management and services in matters such as housing, taxes, social security, permits and licences, financial planning, legal advice, career development, health, ...; (3) organisation of sports activities and events, press conferences, publicity and sports promotion and (4) acting in case of conflicts, mediation and arbitration. Consequently, an agent performs multiple roles allowing the player to concentrate on their professional (sporting) activities. As Hendrickx notes, most legal systems do not actually recognise the notion of 'sports agent' as a legally pre-defined concept. The use of this term refers to a natural or legal person who acts as an intermediary between a sports man or women and other parties, for example between a football player (employee or potential employee) and a club (employer or potential employer). In this connection, an interesting theme to emerge in the contributions is the role of lawyers as agents. Whilst in some states lawyers act as agents, in others, codes of conduct (such as the Italian Deontological Code) or direct statutory prohibitions (as in France) prevent them from offering agent services, this despite FIFA Regulations providing that an agent's licence is not necessary for a lawyer.

Why Regulate Players' Agents?

Agents have been representing players for many years. John Wolohan's United States contribution cites the influence of sports agent Charles "Cash & Carry" Pyle, who in 1925 reportedly negotiated the contract between Red Grange and the Chicago Bears, guaranteeing Grange at least $100,000. However, it has only been since the 1960's and 1970's in the US that agents have come to prominence. The agent phenomenon has arguably only become routine in Europe in recent years. Consequently, the question of player agent regulation is relatively new and it is therefore to be expected that agent regulation will evolve in the future. Until recently, sport did not require the services of agents and where agents were employed by players a form of self regulation took over. For instance, Wolohan tells the tale of Jim Ringo, a high profile pro-football player traded for hiring an agent. Similarly, in Japan in 1992 Yakult Swallows baseball player Atsuya Furuta was rejected by his team when he proposed that his lawyer negotiate his contract with the team on his behalf. Nevertheless, agents did not go away and their role in sport increased. For example, in l986, the US National Football League Players' Association conducted a survey and found that the number of certified agents outnumbered the number of actual players. Currently, the number of licensed agents varies considerably between countries. According to FIFA.com there are 380 licensed agents in Italy, 333 in Spain, 289 in England and 119 in Brazil. By contrast there are just 16 agents in Japan, 8 in Belarus, 7 in Ireland and 1 in Estonia.

The high number of licensed agents in Italy, Spain and England is unsurprising for these are the most well developed football...