Players' agents: past, present ... future?

Martins, Roberto Branco ; Reiter, Gregor

After the well-known Bosman case, the European labour market in professional football changed substantially. Due to Bosman the 3+2 rule (1) was repealed and the payment of transfer sums at the end of a players' contract was found to be illegal in the territory of the European Union for internal EU transfers. (2)

Since the abolishment of the limitation of the number of foreign EU players there has been an immense influx of foreign EU players in EU domestic leagues. Eventually, also many non-EU players began to be employed by EU clubs due to the lower acquisition and salary costs of these players as compared to EU players. Due to the elimination of out-of-contract transfer sums players could receive higher sign-on fees and players' salaries rocketed. A shift occurred in the duration of employment contracts from short-term contracts to longer-term contracts as clubs attempted to keep players on now that they could leave a club without any difficulty. Longer-term contracts also ensured a surrogate "transfer sum" in the form of damages for preliminary breach of contract if players left before the contract was fully served. If one adds to all these elements the fact that football players are, in general, relatively young high-skilled workers acting in a sector that operates under the magnifying limelight of the global media and the fact that many clubs are financially dependent on (international) transfers of players, the outlines of a truly idiosyncratic international labour market clearly emerge. (3) It is due to these aspects that the profession of players' agents has evolved over the past twenty years into an activity that is carried out by thousands of persons worldwide. Nowadays players' agents play an indispensible role as the link between players, associations and clubs. They are the oil that keep the wheels of international football in motion.

In this contribution a short overview is given of the way in which the profession of players' agent has been regulated throughout the (recent) years. This overview is followed by listing some of the indicators for the need to regulate the profession. Despite the regulations already in place, there have been many calls for still stricter regulation coming from stakeholders in international football, including the agents themselves, and from politics. The reasons for this development are also explained in this contribution. Subsequently, some recent actions that affect the future of the agent industry are described, namely a study into the activities of agents ordered by the European Commission and an early draft of FIFA regulations dealing with the activities of intermediaries. Finally, in the conclusion, a look is taken at the future: who can best ensure the sound regulation of a true football profession and guarantee the protection of professional agents, players and clubs against corruption?

FIFA Players' Agents Regulations

From the mid 1990s up to 2001 players' agents were granted a licence by FIFA to carry out the profession of players' agent. In those days, applicants had to take an oral exam that was carried out by employees of the national governing bodies. After passing the exam the only further requirements were the deposit of a CHF 200,000 bank guarantee and signature of a code of conduct, after which the agent could start carrying out his activities.

Due to the growing number of agents and the increase in the international movement of players a new licensing systems for agents was introduced in 2000 which entered into force in 2001. These 2001 regulations introduced the written examination and licensing of agents by FIFA was replaced by licensing by the national member associations. For this reason, the wording "FIFA-licensed agent" no longer applies since 2001 with the official wording now being "Agent licensed by (the national) FA". In order to avoid an overly elaborate description, below only the most recent version (2008) of the players' agent regulations will be discussed in broad terms.

The 2008 Players' Agent Regulations (PAR) determine that only licensed agents can carry out the profession. However, certain categories of individuals are exempted from the licensing requirement and may act as agents regardless: parents, siblings or spouses of players as well as legally authorized practicing lawyers are allowed to carry out the activities of an agent without falling under the jurisdiction of FIFA. Natural persons not falling under the exempted categories may only take the examination at their national association if they have an impeccable reputation and they may not, under any condition, hold a position as an official, employee, etc. at FIFA, a confederation, an association, a league, a club or any organization connected with such organizations or entities. After passing the examination (4) the agent further needs to take out liability insurance and sign a code of professional conduct before receiving his license.

The license is temporary and expires after five years. The agent then needs to take the exam again and if he fails the license is suspended until the exam is finally passed. Examinations take place once or twice a year on a date set by FIFA. (5) The agent is further obliged to conclude a written contract with the player he represents, meeting further formal requirements and for a maximum duration of two years. (6)

The agent is allowed to work for players as well as for clubs upon the request of either. In accepting such requests, agents need to avoid any (potential) conflicts of interest. In addition, the agent is a priori presumed to be guilty of inducing a player to breach his contract if the contract is breached prior to the contract's expiry and without just cause. (7) The burden of proof rests upon the player to establish that he is innocent in order to avoid a sanction. Sanctions that may be imposed upon agents for violating the regulations are a reprimand or warning, a fine of at least CHF 5000, suspension of the licence for up to 12 months, withdrawal of the licence or a ban on taking part in any football-related activity.

The regulations also include the rights and obligations of clubs and players. Clubs may only work with licensed agents and have to make reference to the agent in any contract that has been negotiated by the agent. (8) In the context of a player's transfer, clubs have to make sure that they pay agents by means of a lump sum only of which the amount has been agreed in advance. (9) If clubs violate these regulations they can expect to be warned or severely punished, with sanctions ranging from fines to deduction of points, transfer bans and even relegation to a lower division. (10)

Players that use the services of agents may choose to pay the agent by means of a lump sum or a fee on a yearly basis. The fee is based on a percentage of the annual income of the player. If no agreement is reached concerning the fee, the agent is entitled to receive 3% of the annual income of the player, including any sign-on fee. (11) If the player is responsible for a violation of the regulations he can be warned or punished by a fine of at least CHF 5000, a match suspension or a ban on taking part in any football-related activity. (12)

The need for regulation of the profession of agents

It is common knowledge in football practice that discrepancies occur in the international transfer business. However, problems directly involving agents rarely come before the relevant (international) football arbitration or dispute chambers. (13) Nevertheless, there are many sources that may serve to illustrate the type of problems connected with agent activity from which the need for regulation has become obvious. Below some snapshot examples will be given using different perspectives.

European Court of Justice

The European Court of Justice (ECJ), the highest court in the European Union, has dealt with the players' agent regulations in a case that was decided in 2005. (14) French citizen Laurent Piau filed a complaint against the PAR of 1995. Piau questioned the legality of the regulations and FIFA's authority to draft and implement these regulations. The ECJ was of the opinion that "Thus the need to introduce professionalism and morality to the occupation of players' agents in order to protect players whose careers are short; the fact that competition is not eliminated by the licence system; the almost general absence (except in France) of national rules and the lack of collective organisation of players' agents are circumstances which justify the rule-making action on the part of the FIFA." (15)

The Independent European Sport Review (2006)

The Independent European Sport Review is a study that was undertaken in the context of the EU dealing with the specific nature of sport in European Union law generally, and using football as a case study. The findings were published in 2006. The UEFA, the European governing body in football, has fully endorsed these findings. (16) The study made a strong contribution to the flourishing debate on the regulation of professional sport in relation to the application of EU law and freedoms. The review also focused on the activities and regulation of agents: "Having analysed both the legal reasoning set out in the Piau case and also the practical operation of regulatory control of agents in the European area, the authors of this Review consider that a more rigorous form of regulatory enforcement is required. Furthermore, it may be appropriate to examine a system involving not only EU legal instruments but also with a stronger role for the European governing body (UEFA in the case of football) in particular to oversee effective enforcement of the Rules. A more effective system for regulating the activities of players' agents would also assist in the fight against money laundering (17) by ensuring the integrity of registered agents and monitoring financial flows. This would represent a logical development of the central clearing house system that has been discussed in the context of player transfers in Europe. It is submitted that rules concerning players' agents are inherent to the proper regulation of sport and therefore compatible with European Community law."

European Parliament: Report on the future of Professional Football in Europe (2007)

In 2007, the European Parliament's Committee on Culture and Education issued a report on the future of professional football in Europe. (18) The main rapporteur was Belgian Member of the European Parliament (MEP) Mr. Ivo Belet. In this report some critical remarks as regards the activities of players' agents can be found: "[The committee on culture and education] believes that the current economic reality surrounding players' agents requires that football governing bodies at all levels, and in consultation with the Commission, improve the rules governing players' agents; in this respect calls on the Commission to support UEFA's efforts to regulate players' agents, if necessary by presenting a proposal for a directive concerning players' agents which would include: strict standards and examination criteria before anyone could operate as a football players' agent; transparency in agents' transactions; minimum harmonised standards for agents' contracts; an efficient monitoring and disciplinary system by the European governing bodies; the introduction of an "agents' licensing system" and agents' register; and ending "dual representation" and payment of agents by the player".

European Commission: White Paper on Sport (2007)

A landmark development for the future of sport in the EU was the publication of the EC's White Paper. The European Commission is the main source for initiatives in EU policy action and for placing policy initiatives on the legislative agenda of the EU. The White Paper on sport has as its overall objective to give strategic orientation on the role of sport in Europe, to encourage debate on specific problems, to enhance the visibility of sport in EU policy-making and to raise public awareness of the needs and specificities of the sector. The initiative aims to illustrate important issues such as the application of EU law to sport. It also seeks to set out further sports-related action at EU level. (19) In the White Paper the EC states that it has been informed about malpractices and that it intends to take action: "There are reports of bad practices in the activities of some agents which have resulted in instances of corruption, money laundering and exploitation of underage players. These practices are damaging for sport in general and raise serious governance questions. The health and security of players, particularly minors, has to be protected and criminal activities fought against. The Commission will carry out an impact assessment to provide a clear overview of the activities of players' agents in the EU and an evaluation of whether action at EU level is necessary, which will also analyse the different possible options."

Below, the current state of the impact assessment thus carried out will be discussed further.

National governments: France and Netherlands

In October 2007, in response to and as encouragement of the EC's initiative to publish a White Paper on Sport, the State Secretary for European Affairs of the Netherlands, Mr. Timmermans, together with his colleague, the State Secretary for Sport, Mrs. Bussemaker, cooperated with France in the signing of a Memorandum. (20) The French signatories were the State Secretary for European Affairs, Mr. Jouyet, and the State Secretary for Sport, Mr. Laporte. Concerning the activities of players' agents, the Memorandum states: "Par ailleurs, dans un context juridique complexe, des joueurs professionnels de plus en plus nombreux recourent aux services d'agents pour negocier et signer leurs contrats. Des rapports a ce sujet font toutefois etat de derives multiples, previsibles compte tenu des montant en jeu. La France et les Pays-Bas soutiennent le lancement de l'etude d'impact de la Commission sur cette question. Elle constituerait la base de reflexion en vue d'une position commune dans l'Union sur les licenses requises pour exercer les fonctions d'agents de joueurs, ce qui permetterait de proteger joueurs et clubs des pratiques delictuelles."

European team sports' federations: Safeguarding the heritage and future of team sports in Europe (2008)

In 2008, a letter and a document was sent to the French presidency of the Council of the European Union and to the EU Ministers in charge of European Affairs. The signatories of the document were the presidents of the governing bodies in football, handball, rugby, volleyball, basketball and ice hockey, i.e. Europe's main sports. (21) In paragraph 3.3 of the document the following remark can be found: "The increased prevalence of agents in team sport (operating predominantly in the European area) and the well documented problems linked to their various activities calls for improved regulation to be developed by the sports federations possibly in conjunction with appropriate measures at EU level."

European Football Agents (2008)

In 2007, the European Football Agents Association (EFAA), a not-for-profit association according to Dutch law, was founded. (22) Members of EFAA can only be national agent associations. Currently there are 10 European associations, including the "big 5 league" countries, represented in the EFAA. In addition, in countries where there are no agent associations, EFAA assists in establishing one. Recently, EFAA has decided to accept associated members in response to requests from Brazil, Japan, the United Arab Emirates and Indonesia. An obvious goal of EFAA is to try to improve the general image of agents. The other goals of EFAA are laid down in Article 2 of the organizations' statutes and focus on creating common ground amongst agents in Europe and to support the creation of national agent associations. Article 2.2 goes on to state that: "The Association tries to achieve these objectives inter alia by: promoing the cooperation, amicable relations and unity of the Member Associations and their Members, the FIFA licensed players' agents; aiding the exchange of information between the Member Associations and supplying information about developments that are important to the collective and individual position of the Member Associations in Europe; promoting the interests of the Member Associations while considering the collective affairs important for said Associations in the fields of economics, social economics and employment law; promoting and improving the interests of players' agents in possession of a FIFA license in all respects while safeguarding the general interests of the Member Associations; promoting the co-operation, intermediary activities and relations among organizations, sports institutions, professional football clubs or any other entities and the individual Member Associations, in particular in the field of management, consultancy and all forms of employment in the professional sector of football; concluding collective agreements; all other lawful and permitted means that may be conducive to the objectives."

At the end of 2008, EFAA drafted a list of 10 urgent issues and malpractices that need to be tackled in European football. This list served as the basis for discussion with football stakeholders. (23) The issues listed are described below, 3 out of the 10 in more detail.

First, a solid legal framework needs to be created for the regulation of the activities of agents, clubs and players concerning all issues related to transfers and representation. As opposed to the ECJ's ruling in Piau, many EU Member States regulate the activity of sport agents through general statutory interventions or general legislation such as contract law and agency work laws. Others have established a sport-specific statutory basis for agent regulation. Currently 93% of the European Union-based agents are primarily regulated by a source of law or collection of rules that prevail over the FIFA PAR. (24) The complexity in this legal environment is aggravated by the rulemaking activities of international sports federations, whose rules are applicable to agents through the system of licensing. The mandatory transposition of international sports regulations by national associations has increased legal inconsistencies and has led to conflicts in the European sports sector. There is an absolute necessity for a source of regulation that is in line with the hierarchy of laws (EU law - national law - association law) in order to create legal certainty in the regulation of the profession of agents and the transfer of players. Such regulation needs to be applicable to a well-defined area of activities. (25)

Second, the football sector should work towards a ban on the activities of unlicensed "agents" and the activities of unlicensed exempted individuals and focus on better control of licensed agents who act as a cover for unlicensed agents. There is a need to attach more meaning and value to the FIFA license issued by the national associations. The activities of unlicensed agents take place beyond the control of the governing bodies as they do not fall within the scope of rules or regulations. These agents can therefore be involved in malpractices without being sanctioned. This leads to immense discrepancies if licensed, professionally organized agents are subject to stricter regulations that lead to a limitation of the freedom to provide their services. Moreover, this has the opposite effect to that pursued through the objectives of the regulators and the agents themselves. The problem of exempted individuals are also widely felt. A number of countries have introduced bans on the activities of lawyers who, in many cases, "sell" their autograph to unlicensed agents. (26)

The governing bodies should have the authority to investigate if a players' agent uses his licence actively. This test may quite simply consist of analyzing the transfers negotiated by the agents. If the analysis shows that an agent uses his licence mainly to act as a cover for unlicensed agents he should be sanctioned.

Third, EFAA is working on improved protection for youth players and minors. This is a problem that involves all stakeholders. It is a broad issue and many aspects must be analyzed, including the proper limits to the professional influence agents should be allowed to have on football players below the age of 16. Another important element in the discussion are the criteria for the entry of minors into the territory of the EU. It should be avoided that parties involved in human trafficking are able to go "forum shopping" to bring minors into EU territory. The fact that due to the effects of training compensation and transfer sums players already represent a substantial value at a very young age also needs to be thoroughly investigated. More proportionate means may exist to reach the effect envisaged by the initiatives mentioned. An analysis of the negative effects of the home-grown player rule is also strongly welcomed and endorsed by the agents.

Other elements appearing on the abovementioned list include a transparent sanctioning system for agents, players and clubs in case of malpractices related to transfers; a ban on the tolerance of ownership of "athlete's registration rights" or "federative rights"; (27) harmonization and simplification of the method of invoicing of agents' fees; uniformity in tax legislation; harmonization of the method of payment of agents, enabling agents to be paid directly by players as well as by clubs on behalf of players; compulsory permanent education for players' agents including an annual seminar devised, taught and controlled by the Football Associations and football stakeholders including EFAA; and guidelines on the "legal and allowed" services rendered by agents to clubs. EFAA intends to continue working together with football stakeholders in order to reach these common goals.

Significant recent developments: Deregulation of agents by FIFA vs. EC agent study

From the above it can be concluded that there is a serious need for football to control the activities related to transfers in general and agent activity more in particular. The main concerns of football practice and of politics related to sports in general and football in particular include child trafficking, money laundering, corruption and the protection of players' careers.

A recent development resulting from the 59th annual FIFA conference in the Bahamas appears at first sight to conflict with all the arguments mentioned above as put forward by the stakeholders: FIFA intends to deregulate the profession of agents to focus exclusively on its target groups: players and clubs.

The member associations of FIFA voted in favour of reviewing the current system of regulation of agents because FIFA argued that only 25% to 30% of transfers are carried out by licensed agents. (28) The member associations of FIFA generally support the idea of in-depth reform of the players' agent system through a new approach based on the concept of intermediaries and thorough discussions with club and player representatives. A working group of the FIFA committee for club football (including 2 FIFPRo world players' union members, 2 club representatives and the FIFA legal department) was established to draft this reform, the outlines of which already appeared in the Dutch media at a very early stage of negotiation of the new regulations. (29) The working group proposes that all currently licensed agents need to hand in their licences to their national FA's. The FA's must refund any bank guarantees to the agents. The agents will no longer be regulated, but instead the focus will be on the contracts that are connected with transfers. Anyone will be able to act as an agent: lawyers, family members, managers, etc. Players and clubs as the main actors need to exercise due diligence and transparency in negotiating and concluding contracts. They are also the parties that can be sanctioned. Emphasis is put on avoiding conflicts of interest and on the fact that the party hiring the services of the intermediary is obliged to pay for them. In essence, therefore, the reform consists of the following elements: no licence, no insurance, no agent regulation and no agent activity control apart from control at the very last stage of the transfer process.

At the other end of the spectrum we find the outcome of the EC-commissioned study into the activities of agents. At the time of writing of this article only a draft had been completed, but it appears that, considering the abovementioned arguments brought forward by football practice, more particularly European football practice, the total abolishment of the licensing system is undesirable. In fact, if the overarching international system disappears, regulation of the profession will still exist at the national level. Many EU countries have their own regulations or laws dealing with agent activity. (30) This would add up and lead to legal uncertainty and difficulties in carrying out the profession for agents and in concluding transfers for players and clubs. Moreover, by solely focusing on the final stage of the transfer, the contract, the sources of very real problems (child trafficking, corruption, money laundering, etc.) that are rooted in the process preceding actual transfer are left undealt with and unsupervised.

An interim conclusion could therefore be that the level at which the profession and activities of players' agents is regulated will shift from the worldwide level of the umbrella organization to the level of the European Union. This interim conclusion is based on the recent drafts of the FIFA intermediary regulations and the views of the European football sector as contained in many official documents. The question then becomes: what avenues exist that may lead to the EU regulation of agents? A look at the future shows that there are many possibilities of which 2 will be outlined below.

The future...

The calls for the better regulation of players' agents in Europe from the different perspectives described above, have many things in common. There is a call for uniform regulation that may be enforced throughout the continent, guaranteeing professionalism and the permanent education of agents and the protection of (young) players and minors. Added to this is the demand for transparency in financial transactions, clear sanctions and a licensing system including a register. These elements could form the basic pillars of a set of rules embedded in any type of law or regulations in which a clear definition of the activities and role of the agent should also have a place.

In this contribution, the concept of the European Social Dialogue in football and a possible EU directive are broadly investigated as potential instruments to address the abovementioned issues.

Social Dialogue in European Professional Football

On 1 January 2008, after almost eight years of preparatory work, the Sectoral Social Dialogue Committee for professional football was officially established. (31) The creation of the Committee has been heavily endorsed by the EC and other European institutions. (32) The comment in the European Parliaments' (Mavrommatis) report in reaction to the White Paper probably best underlines the position of the EU: "[The committee] underlines the importance of social dialogue promoted by the Commission as a valuable platform to promote social consultation and stable relations between employer and employee representatives and ensure legal certainty and contractual stability in sport; in this respect, welcomes the fact that the EPFL and FIFpro, mutually recognising each other as social partners, have jointly requested to the Commission the formal establishment of a EU social dialogue committee in the professional football sector, with the clubs and UEFA taking part as equal partners." (33)

The negotiations between the social partners may lead to agreements on the level of the EU that have to be implemented in every Member State. Implementation is effected by means of an EU directive or through channels of social dialogue structures at the domestic level of the Member States. (34) Currently, fruitful discussions are already taking place within the Social Dialogue Committee. (35) These discussions focus on the creation and implementation of a standard players' contract for the EU.

The topic of agent regulation does not however seem to be a topic for negotiation within the framework of a Sectoral Social Dialogue agreement. (36) It could still be part of discussions within an "informal" Social Dialogue, but this would not serve the main reason for such discussions (establishing a solid legal basis) which means that the problems described cannot be solved under the instrument of the Social Dialogue. It is possible that the EC might apply a different approach when it comes to including the topic of the regulation of agent activity in a Social Dialogue framework. After all, the EC already appears to have introduced a form of "sport specificity" in the European Professional Football Social Dialogue by allowing the European Club Association (ECA) to act as a social partner, given that the ECA does not prima facie meet the requirements which the EC has attached to the status of social partner organization. (37) Still, the EC judged that the participation of the ECA was necessary to guarantee that football employers were more densely represented. (38) EPFL and ECA now represent the interests of the employers together. The fact that UEFA was appointed as the chair of the Social Dialogue Committee in football completes the picture (39) and underlines how a Social Dialogue in sports functions. The Sectoral Social Dialogue Committee is an obvious reflection of the professional football strategy council in the UEFA structure. (40) This "cross-fertilization" of both committees guarantees the compatibility of football regulations with EC law and vice versa. This is an example of a sport-specific, strong Social Dialogue taking place within the ambits of the law.

When viewed from this perspective, the topic of players' agents could also be included in the Social Dialogue agenda. Or as the EP Employment and Social Affairs Committee put it in the Mavrommatis report: "[The committee] considers that players' agents should have a role within a strengthened social dialogue in sports, which, in combination with better regulation and a European licensing system for agents, would also prevent cases of improper action by agents." (41)

This would be in line with practice in a number of Member States where private employment agencies (which is the legal status of players' agents according to international legislation) (42) take part in the self-regulation of their profession and in collective agreements with employers and employees. (43)

EU Directive on Players' Agents

A serious number of football stakeholders have requested that the EC draft a directive on players' agents. Judging by the problems that were outlined above, the EC seems very capable from a policy point of view to shape such a directive. The European Commission is normally reluctant to intervene in a sector and to impose rules by means of a directive. (44) However, considering the desire of all major EU football stakeholders, including the organized agents themselves, for a strong legal framework, the EC might be tempted to undertake serious legislative action. If we add to this the arguments in favour of tackling corruption, money laundering and child trafficking and the inability of the stakeholders so far to reach a stable solution, it could be argued that there is not only a possibility for the EC to come up with a directive, but also a political responsibility. Moreover, it would not be the first time that the EC has intervened in the regulation of a profession. (45) However, a counter-argument for issuing a directive including a licensing system would be that competition could be distorted due to the introduction of thresholds for carrying out the free provision of services. The application of Article 81 EC Treaty (dealing with EU competition law) seems to be out of the question for reasons connected to morality and professionalism - the same reasons which allowed FIFA to regulate agents in the first place. (46)

If the EC issues a directive, the parties bound by it are the EU Member States. They have to guarantee the implementation of the directive under national law within a given period of time. This could be done with respect for national sport structures by letting the stakeholders at national level decide how to implement the (minimum) guidelines drafted at EU level. (47)

Conclusion

Developments are about to take place in relation to the regulation of players' agents, that much is certain. However, the direction and source of any future regulation is still unclear and depends on the outcome of the EC impact assessment study into the activities of agents. Therefore, the role of the stakeholders in the regulation of the profession also remains undefined for the time being.

The European Social Dialogue Committee in football is now an institutionalized setting for negotiations within the football sector. Difficulties may arise when the topic of players' agents is tabled as this topic is not officially a topic that can be discussed within the Social Dialogue framework.

A directive on sport agents in the EU could be a solution. Such a directive could not exclusively cover players' agents in football as it would be too specific for a relatively small sector and would not provide an answer to the requests of other team sports. However, the European Commission remains reluctant to intervene in sectors where self-regulation is possible and would first wish to explore the possibilities for self-regulation before deciding to issue a directive itself.

Again, considering that common ground does exist amongst the stakeholders that are part of the platform that is the Social Dialogue Committee, it is to be expected that the EC will investigate those avenues before imposing legislation. Any form of future regulation should meet the criteria of subsidiarity and proportionality. (48) A major difference compared with before is that licensed players' agents are now united in a European grouping and that they have been involved in the discussion. This opens up many perspectives for cleaning up the industry.

Besides the two options explored above, a range of other options is also open, but only the future can tell in which direction the sector will head.

In view of the seriousness of the subject, one final remark still needs to be made. It seems possible to create a stable, EU-wide agreement on agents. However, this would not provide the ultimate solution to the most stringent problem related to transfers and agents, namely the trafficking of children. The EU does not possess the power to establish a common immigration policy and it has to be avoided that individuals or networks engaged in these activities are able to go "forum shopping" for the best entry conditions for minors or for countries with little border control. A focus by FIFA on the protection of minors (49) is not enough as this is restricted to the moment of actual transfer. The malpractices occur in the process leading up to the actual transfer and take place mainly in non-EU states. Europe can take over the regulation of agents in the EU (50) and relieve FIFA of the administrative burden However, football needs to act as one in order to combat the most serious problems and FIFA is the only body capable of reaching all football nations worldwide.

(1.) The 3+2 rule quota system meant that only a limited number of foreign players could play in a particular match. For example, in the UEFA club competitions, only 3 foreign players (plus 2 'assimilated' foreign players) could play for a team.

(2.) Case C-415/93 Union Royale Belge des Societes de Football Association ASLB v. Jean Marc Bosman [1995] ECR I-4921.

(3.) See also: S. van den Bogaert,'Regulation of the Mobility of Sportsmen in the EU', (2005) Kluwer Law international and Gardiner, James, O'Leary and Welsh ed., 'Sports Law', third edition, (2006) Cavendish Publishing, pag. 500-521.

(4.) Passing the exam is very difficult. In the Netherlands, out of the 175 candidates who sat the two most recent exams in 2008-2009, only 8 were successful.

(5.) Article 17 PAR.

(6.) Article 19 PAR.

(7.) Article 22 PAR.

(8.) Article 27 and 28 PAR.

(9.) Article 20 PAR.

(10.) Article 35 PAR.

(11.) Article 20 PAR.

(12.) Article 34 PAR.

(13.) For an overview of DRC Jurisprudence see also De Weger, 'The jurisprudence of the FIFA Dispute Resolution Chamber', (2008), T.M.C. Asser Press..

(14.) Case T-193/02 Laurent Piau v European Commission supported by FIFA, Jur EG 2005, p.II-0029, no.8..

(15.) Idem

(16.) See also the specific website of the review www.independentfootballreview.com: "The report will take into account relevant input from UEFA's high level strategy Vision Europe (April 2005). These Terms of Reference have been drafted in consultation between UEFA and under the UK Presidency, some of the EU member states. Whilst led by UEFA, the EU ministers are part of the governance of the report. The "football authorities" in Europe are UEFA for European/EU matters and UEFA's member associations for national matters." See also in this respect www.uefa.com/uefa/keytopics/kind=2048/newsid=480464.html

(17.) Concerning money laundering in football the Financial Action Task Force published a report in july 2009, the role of agents in money laundering( pag. 20-23) is in fact only relevant if the client of the agent is involved in money laundering. The report specifies the difficulty to control the business of unlicensed agents in this respect. A copy of the report in possession of the author,

(18.) The link to the report: www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A6-2007-0036+0+DOC+PDF+V0//EN&language=EN

(19.) Introduction to the White Paper on sport, to be found at http://ec.europa.eu/sport/white-paper/whitepaper8_en.htm#1

(20.) Report to be found at http://www.minvws.nl/images/s-2808263b_tcm19-154391.pdf

(21.) Report to be found at http://www.uefa.com/multimediafiles/download/uefa/others/73/43/89/734389_download.pdf

(22.) More information: www.eufootballagents.com

(23.) See also: http://www.pro-agent.nl/index.php?cid=4&aid=163&start=0

(24.) R. Branco Martins, 'The Laurent Piau Case of the ECJ on the status of players' agents', in 'EU, Sport, Law and Policy' (2009), pag. 256, T.M.C. Asser Press..

(25.) A few examples: in the Netherlands players are not allowed to pay for the services of agents, while the FIFA PAR allows this; in Belgium an agent must have a licence for the specific regions Walloon, Flanders and Brussels in addition to the FA licence before being allowed to carry out work; in France foreign agents need to be registered and have a French licence in order to work in France. All this serves to illustrate that the umbrella-level regulations are not consistent with national regulatory frameworks.

(26.) France has introduced a ban on the activities of lawyers in agent activities, see also: http://droitdusport.wordpress.com/2009/05/29/agent-sportif-avocat-la-robe-ou-la-licence/: "Alors que la proposition de loi ne contenait a l'origine aucune disposition relative au cumul d'activites agent - avocat, la Commission des affaires culturelles du Senat a propose d'apporter une precision: " l'activite d'un agent ne peut etre exercee par un avocat. (...) Si les avocats peuvent preparer les contrats et conseiller les agents, ils ne doivent pas pouvoir negocier et operer les transactions avec les clients". Le Senat a ainsi adopte le texte suivant: "Nul ne peut obtenir ou detenir une licence d'agent sportif s'il exerce la profession d'avocat" and for the text of the proposal see: http://www.senat.fr/leg/ppl07-310.html. In Portugal the bar association has warned its members to refrain from working as agents and more recently the Dutch bar association has announced that lawyers are not allowed to act as intermediaries for non-licensed agents.

(27.) See also: http://www.tsslaw.co.uk/documents/Sport%20and%20the%20Law%20Journal.pdf and E. A. Garcia Silvero, 'La Extincion de la Relacion Laboral de los Deportistas Profesionales'(2008),pag 97 and further, Thomson Aranzadi..

(28.) See also: http://www.fifa.com/aboutfifa/federation/administration/news/newsid=1081337.html

(29.) Voetbal International, edition 18 August 2009.

(30.) See footnote 23.

(31.) EPFL Sports Law Bulletin edition 1, August / October 2008.

(32.) The European Commission DG Employment and Social Affairs supported a total of 7 projects that have lead to the eventual creation of the European Sectoral Social Dialogue Committee in football.

(33.) Report to be found on: http://www.europarl.europa.eu/oeil/file.jsp?id=5565022

(34.) See the most recente article in a series R. Branco Martins, 'Regulation of professional football in the EU: The European Social Dialogue as a basis for the creation of legal certainty', in 'EU, Sport, Law and Policy (2009), pag. 317-337, T.M.C Asser Press

(35.) EPFL Sports Law Bulletin edition 3, January / March 2009.

(36.) The social partners may reach agreements that can be transposed into national guidelines or regulations only if the topic is directly related to the issues mentioned in Article 137 EC Treaty. The activities of players' agents do not seem to fall within this scope.

(37.) There are 3 criteria which an organization has to meet in order to be eligible for consultation. The organization has to: be cross-industry, or relate to specific sectors or categories and be organized at European level; consist of organizations which are themselves an integral and recognized part of Member States' social partner structures and with the capacity to negotiate agreements, and which are representative of all Member States, as far as possible; have adequate structures to ensure the effective participation in the consultation process. The ECA does not possess these characteristics.

(38.) EC representative presentation at the Sport and EU meeting in Britain.

(39.) Zie stukken internet sectoral committee in football.

(40.) See for the composition of the council: http://www.uefa.com/multimediafiles/download/uefa/keytopics/90/11/92/901192_download.pdf.

(41.) Report to be found at http://www.europarl.europa.eu/oeil/file.jsp?id=5565022 and more specifically at the comments of the European Parliament point 99 concerning the organisation of sport.

(42.) See the International Labour Organisation convention on private employment agencies: http://www.ilo.org/ilolex/cgi-lex/convde.pl?C181 and also F. Hendrickx 'De reglementering van de sportmakelaar in Belgie', in 'Transfers en makelaars in de sport', (2002), pag. 71-95, Intersentia

(43.) See in this respect also the report of EuroCIETT, the European Trade Union for private employment agencies, to be found at: http://www.eurofound.europa.eu/eiro/studies/tn0807019s/index.htm

(44.) A directive seems to be the obvious choice given the effect that football stakeholders intend to reach; harmonized rules in every Member State.

(45.) See A. Husting, 'Quelle intervention communautaire pour reguler la profession d'agent des joueurs?', (December 2007), 85 RJE pag. 157.

(46.) See footnote 23.

(47.) Supra 45.

(48.) See for an elaborate description of sports regulation in the light of EU law S. Miettinen, 'Regulating sports services in community law', in 'EU, Sport, Law and Policy' (2009), pag. 259-280, T.M.C. Asser Press.

(49.) See the new regulations of FIFA dealing with minors, incorporated in the Regulations on the status and transfer of players, article 19.

(50.) Europe is currently the continent that is responsible for the biggest amount of transfers and the circulation of money considering transfers.

by Roberto Branco Martins * and Gregor Reiter **

* Lecturer on Labour Law and Sport, University of Amsterdam, director of the Dutch players' agent association Pro Agent and general manager of the European Football Agents Association (EFAA).

** Partner of law firm Stank Reiter Staudinger (Oberhausen), CEO of the German players' agent association DFVV and legal counsel of EFAA.