Spain.

• Author: Rey, Jose M.

1. Introduction

   1.1. Sport in Spanish law

   Sport is a physical activity engaged in as a game or as a competition which is governed by rules established by various legislative bodies, which rules aim to protect the sphere of sports and its future development.

   The Spanish Constitution of 1978, which has priority over all other laws in Spain, in Article 43.3, which is part of Chapter III entitled "Governing principles of social and economical policy", establishes the right of every citizen to practise sport or any physical activity as well as a duty for public authorities to encourage the organization of sporting activities and to monitor how these are practised. It is worth noting that in 1978 sports law was already deemed significant. Obviously, the legislator already understood the necessity of regulating sport not only as exercise, but as a professional activity and an activity providing public entertainment. This conception of sport has shaped the new legal meaning of sport in recent years and has led to new views on how to regulate sport.

   Sport is commonly perceived as a key element in the welfare of countries, not only because it represents a basic need for human health, but also because it is an excellent means of creating relations between people, both nationally and internationally.

   If we consider what sport means in Spain, we can understand the importance of specific laws to regulate all matters that may play a role in this extensive field. As a consequence, the Sports Act (Law no. 10/1990) was established on 15 October 1990, which includes and further elaborates all the legal precepts related to sport included in other Spanish regulations. The Act deals particularly with sport at a high level, and defines the subject in its "Preliminary Comments" emphasizing in Article 6.1 the significance of top level sport for the country as an "essential element for sportive development, as an incentive for minors, and for its representative role" when practised at official events among all five continents.

   The Sports Act establishes sports legislation in general terms, but there are many more ways of regulating sport depending on the subject-matter dealt with, for example by means of the different Sports Laws of the Autonomous Regions in Spain, of Ordinance no. 1835/1991 concerning the Spanish Sports Federations, of the Ordinance concerning Doping Controls or of Ordinance no. 1412/2001 of 14 December 2005 concerning sports stock companies.

   As a brief conclusion to this introduction it can be said that sports law is a fast expanding and developing area of legal debate and inquiry. It is both an area of significant practitioner activity and of increasing academic analysis. The private law rules governing the national and international sports world itself form the backbone of sports law. However, sports activities are as much influenced by ordinary rules of public law. The complexity of sports law thus results from interconnected disciplines and sources.

   1.2. Sports law

   Sport permeates all areas of life and involves multiple business, legal, political and social issues. For example, professional sport as show business has grown at such a rapid pace that nowadays it represents a highly influential activity exerting great appeal form a cultural, social and economical perspective.

   As a result of the progressive commercialization of professional sport, the need for regulation of the different types of relations in this field has become increasingly evident. Such relations may be between the various sports associations that organize the different competitions at professional level, as well as relations between the clubs and these associations and relations between players and clubs (which will depend on the legal form of each individual club) and even relations which all of these actors may have with player's agents, which subject will be dealt with further on.

   The same holds true for any disputes that may arise between these actors. Due to the broad field covered by sports in terms of the millions and millions of fans that it brings in, and all the financial and marketing operations it involves, it is obvious that the words 'sport' and 'law' must be somehow brought together.

   As a consequence, a branch of law called sports law is gradually emerging, not as an independent legal field, but as a set of multidisciplinary rules that regulate all aspects related to sport in general terms, and especially in the field of professional sport. These rules may originate in almost any legal field, from administrative law to labour law, from commercial law to private law. A perfect example to illustrate this is the position of players vis-a-vis their clubs, as obviously players are not ordinary employees and the clubs are not ordinary companies, given that the Sports Act in Article 6.2 provides that "the public authorities are responsible for providing an educational system for top sportsmen and for their complete integration in society". Another example is that disputes in sport and athletes themselves are subject to a separate sports jurisdiction which is unconnected to the ordinary system of courts of justice.

   In that respect, sports cannot be equated with ordinary work activities, due to the fact that players are not like ordinary employees and clubs are not like ordinary enterprises. Both have special features that allow them to establish multidisciplinary relationships between several legal fields, namely public law, labour law, administrative law and commercial law, which each regulate different aspects of sports.

2. Sports agents

   2.1. Concept and comments

   In defining the term 'agent' we encounter several problems connected with the nature of agency and the activities performed by agents. To begin with, it should be noted that it is difficult to formulate a precise definition of the nature of players' agents activity due to the huge variety of circumstances and elements that can be combined. However, it is evident that the agent, regardless of whether he/she/it is a natural or legal entity, always operates in the market, attempting to negotiate deals and mediate between the seller and the purchaser, in our case between the players and the sports clubs. Although it is not possible to regulate these qualities in a general manner through sports law, we still find important specifications in the rules as to who can participate in this field, for example in the Player's Agents Regulations which define an agent as a natural person, who, for a fee, on a regular basis introduces players to clubs with a view to employment or introduces two clubs to one another with a view to concluding a transfer contract (Art. 1).

   If we go back to the origins of the concept of agency, we find that the term agent is used mainly to refer to a concept imported from Anglo-Saxon law and has been adapted to represent the figure of the sports agent. Nowadays, the agent plays a mediating role between the parties, but without the impartiality that in Spain distinguishes a mediator from other professionals. The reason for this is the commercial nature of the relationship between the player and the agent which induces the latter to act on behalf of the former, who is contractually his/her client, in exchange for remuneration that mostly consists of a percentage of the total economic value of the deal made, which from now on will be called 'commission'.

   As we can see, depending on the activity carried out and on other elements such as the legal status provided or the remuneration agreed upon, we may be talking of different contracts and therefore of different parties.

   In any case, a very apt definition that accurately reflects the agent's duties is the one contained in the second paragraph of Article 1 of the FIFA Player's Agents Regulations (hereinafter referred to as FPAR) which states that "The player's 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".

   Sports agents' activities have widened the scope of the agency contract. These days, the agent for example often handles the public relations of his/her client and in some large sports agencies, agents deal with all aspects of a client's finances connected to sports, from investment to taxes.

   The Player's Agents Regulations regulate these contracts under which players and clubs can make use of the services of a player's agent during negotiations with other players or clubs provided the player's agent possesses a licence issued to him by the national association in conformity with Article z.

   2.2. Specifying the tasks

   As we have seen, defining an agent's field of activity is quite a complex task due to the immense variety of activities which agents may perform, although it is at least clear that his/her main activity is to mediate between the player and the club with a view to concluding a contract between them. From this task, we may derive another function of the agent which is widespread in Spain and worldwide, and this is his/her function of providing professional advice to the player. This task can be divided into several dimensions, as we are not only talking about advice concerning the different aspects involved in the terms and conditions of the contract, but also about advice on tax and financial matters throughout the duration of the contract. Examples of these activities are registration, recruitment, renegotiating and changing agents, personal services to and counselling of clients, and preparatory activities such as tryouts, personal training and marketing. All of these activities must be performed in conformity with prevailing ethics.

   In accordance with this economic function, we can see that if we take the example of an international athlete who is known worldwide, the agent acts as his/her promoter and as the manager of the...