The Regulations on Working with Intermediaries can be misleading. This regulation, adopted to replace the Players’ Agents Regulations, could appear to suggest that intermediaries are agents, and vice versa, and that the rights and obligations of intermediaries established in the new regulation are the same for agents. Thus, for example, it may appear that agents, like intermediaries, can accept to find themselves in a conflict of interest, and that this conflict can be set aside in certain circumstances. However, this is not actually the case. On the contrary, agents must avoid conflicts of interest at all times. This difference in treatment between intermediaries and agents comes from the fact that the interests each must protect aren’t the same and/or don’t have the same scope.
When an agent undertakes to follow and advise a player, it is a commitment to manage and defend the interests of the player to the exclusion of any other interests. In general, an agent’s duty of diligence, fidelity, and loyalty to a player requires the agent to undertake all that can reasonably be done to promote the player’s interests and refrain from anything that could harm the player. Specifically, the agent’s duty to defend only the interests of the player forbids the agent from working with and/or on behalf of other parties whose interests are, or may be contrary to those of the player. This means the agent cannot claim to properly defend the player’s interests if he has also made commitments, or is bound or linked – directly or indirectly – to the club against which he could be called to take action, including of a legal nature, in the case of a dispute arising between the player and the club throughout the duration of the employment contract.
In a club/player relationship, the interests of both parties are by their nature potentially conflicting throughout the contract period. In the employer/employee relationship that exists between a football club and a player, there’s a particularly high likelihood that there will be conflicts at some point. Even in cases of a positive club/player relationship, conflict can never be ruled out – especially when an injury occurs, or when the player is relegated to the bench, or when the club or the player want to end the contract prematurely. Therefore, the agent must systematically refuse to be put in a situation of conflict of interest and must refuse any contractual relationship with the player’s club.
Thus, to mention the most common examples, contrary to the limited possibilities granted to intermediaries by the Regulations on Working with Intermediaries to set aside a conflict of interest in some specific situations:
A club that wants to hire a player cannot appoint the player’s agent as intermediary to negotiate an employment contract. Agents are prohibited from having any contractual relationship whatsoever with a club that their player wants to join.
The agent cannot act as an intermediary on behalf of the club to which his player is signed or about to sign with a view to concluding a contract on behalf of another player, if the club and the agent have agreed that the agent’s remuneration for this negotiation would be paid by the club by installments rather than in a lump sum. The reason for this is that the agent must refuse any dependency on the club against which the agent is committed to defending the interests of his player. The fact that the employment contract is being negotiated on behalf of another player doesn’t change anything.
The agent cannot be appointed as an intermediary by one of the clubs or by both clubs to negotiate a transfer agreement involving the agent’s player. Here too, the agent is prohibited from maintaining any contractual relationship whatsoever with the clubs to which the player is (still) contracted or wishes to be contracted to.
The agent cannot be appointed as an intermediary by his player’s club to negotiate a transfer agreement involving another player. Again, the agent must refuse any contractual relationship whatsoever with the club to which his player is contracted. The fact that the transfer agreement is being negotiated on behalf of another player does not change anything.
The agent’s duties toward the player require the agent to never be put in a conflict of interest, which means there are never any conflicts to set aside. Any agent who accepts such a situation and maintains a contractual or dependent relationship, whether direct or indirect, with the clubs concerned, is in breach of his duties to the player.
This breach can justify a termination of the contract between the player and the agent, the payment of monetary damages to the player, and the reimbursement of sums wrongly received.
Furthermore, in many cases and countries, agents who have enriched themselves illegally, without the knowledge and against the best interests of their player, are also guilty of an offence under the criminal law – e.g., improper management or fraud. This may especially be the case when the agent switches sides during negotiations, and instead of representing the player, represents the club for the duration of the transaction, before resuming the role of an agent on behalf of the player once the contract is signed (this practice is known as “switching”). This may also be the case if the agent tries to “avoid” a conflict of interest by appointing another agent to negotiate the player’s employment contract with the club, and both agents end up receiving remuneration from the same deal.