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FIFA’s Regulations on Working with Intermediaries, which came into effect in 2015, introduced a new “intermediary” status to refer to people who are involved in the contractual relationship between players and football clubs. This intermediary status is distinct from that of players’ agent, and their roles overlap only partially.

FIFA’s regulations define an intermediary as a “natural or legal person who, for a fee or free of charge, represents players and/or clubs in negotiations with a view to concluding an employment contract or represents clubs in negotiations with a view to concluding a transfer agreement.”

The players’ agent – also known as sports agent – is also an intermediary according to the legal definition of the term “agent” in many jurisdictions. FIFA’s former Players’ Agents Regulations, which was repealed in 2015, defined the role of a player’s agent as introducing players to clubs with a view to negotiating or renegotiating an employment contract.

However, in practice, in all sports, players’ agents have a broader role than “intermediaries” within the meaning of FIFA’s new regulations. Indeed, in addition to negotiating contracts, players’ agents are meant to support and advise the players and defend and manage their interests during their career or any part thereof. An important part of an agent’s job is to look for potential new clubs and introduce their players to some of them. Players’ agents are generally responsible for managing the players’ communication, negotiating sponsorship contracts, implementing a strategy for marketing and image rights, etc. They may also manage their players’ assets.

The role of intermediaries as per FIFA’s regulations is different from that of players’ agents. Specifically, intermediaries have a temporary role that covers a single well-defined task: the negotiation and conclusion of an employment contract of their player with a club. The role of a player’s agent is wider and includes multiple tasks over a longer term. This distinction is crucial, as the regulatory system, rights, and obligations of intermediaries are different from those of agents. In the interests of simplicity, the term “agent” will be used on this website to refer to players’ agents.

In 2015, FIFA replaced the Players’ Agents Regulations, which governed the work of licensed FIFA agents, with the Regulations on Working with Intermediaries. The main reason is that FIFA considered that it could no longer guarantee the quality of private contractual relationships between players and their agents. Today, FIFA only regulates agents when they are acting in their temporary role as intermediaries – in other words, when they are negotiating employment contracts with clubs on behalf of their players. On the other hand, FIFA no longer regulates how they introduce players to clubs – not to mention their follow-up, advising, management, and defence of the players’ interests. Which in any case, would be impossible for FIFA to monitor.

In addition to FIFA’s regulations, and by virtue of the principle of sovereignty, each country is free to regulate the profession of agent as it sees fit. For example, France requires sports agents to have specific training and a licence in order to exercise this profession. In the absence of specific national legislation governing football agents, the rules of private law – e.g., the rules governing management, brokerage, and agent contracts – and the general legal principles applicable in each country govern the contractual relationships between players and their agents.

Since 2015, any intermediary who represents a player and/or a club as part of negotiations with a view to concluding an employment contract, or who represents a club in negotiations with a view to concluding a transfer agreement, is subject to the rights and obligations established in FIFA’s Regulations on Working with Intermediaries.

More information on the rights and duties of intermediaries can be found in FIFA’s regulations, available here.

In addition to FIFA’s regulations, intermediaries are subject in many jurisdictions to stringent domestic legislation, usually related to job placement services. The fact that this activity takes place in the football world makes no difference. The standards aimed at protecting workers are naturally also binding on agents working as intermediaries. Many countries require intermediaries to have prior authorisation, with more-or-less strict conditions, in order to place players within that country or abroad.

The duties of agents and intermediaries towards their players depend on the nature of the contracts between them. While the nature of these contracts may vary from one country to another according to their various legal systems, there are universal principles that apply to the contractual relationship between agents or representatives and their clients.

When an agent is hired to offer support and advice to a player and to manage and defend their interests, or when an intermediary is hired to negotiate an employment contract with a club with which he has no prior relationship, the agent and the intermediary must perform their duties with diligence, fidelity and loyalty to their client. These duties require agents and intermediaries to act solely in the best interests of their player, which means that they must undertake all that can reasonably be done to promote the player’s interests and refrain from anything that could harm the player or betray the trust that is the foundation of their relationship. In particular, agents and intermediaries must avoid and reject any conflict of interest already present or that may hereafter arise between their own interests, the interests of their player, and the interests of third parties – clubs and others - with which they are dealing with on behalf of the player.

For example, an agent would be breaching his duty to his player if he conducted multiple transactions that would result in a profit for himself over the best interests of the player’s sporting career, or if he is remunerated by a club with which he negotiated a contract for the player, or if he receives remuneration calculated on the player’s transfer fee, or if he puts his commitments to the player on hold to instead represent the club currently engaged in a negotiation with the player (this is known as “switching”), or if he hides from the player the fact that other parties besides the agent and the club were involved in a transaction concerning the player.

In civil law, such breaches can justify a termination of contract by the player, the payment of monetary damages by the agent to the player, and reimbursement by the agent of sums that were wrongly received. Furthermore, in many cases and jurisdictions, an agent who has enriched himself illegally, without the knowledge and against the best interests of his player, is also guilty of an offense under criminal law – e.g., improper management or fraud.

The exact legal nature of the contractual relationship between a player and an agent depends on the services that the agent has agreed to offer to the player. In most cases, agents are more than simple intermediaries, in that they also commit to defending the player’s interests, and providing support, advice, and management throughout the player’s career, or a part thereof. In particular, this includes looking for potential new clubs for the player. Such a relationship is generally reflected (or should be) through the conclusion of a management contract between the player and the agent.

To protect the rights and interests of each of the parties and ensure that they fulfil their commitments, the management contract should imperatively be in writing and include at least the following: the extent of the services to be rendered by the agent, the remuneration of the agent for the various services, the obligations of each party, the contract’s duration and termination clauses, as well as the applicable legislation and jurisdiction. The management contract is the basic contract governing the relationship between the player and the agent in the long term.

In addition to this management contract, if the agent acts as an intermediary in negotiations with a view to concluding an employment contract with a club, then under the terms of the Regulations on Working with Intermediaries, the player and the agent must imperatively sign a representation contract before beginning negotiations. This representation contract may be limited in time to cover the current transaction or be concluded for a fixed period that can cover several transactions.

Prior to negotiating an employment contract with a club, the agent and the player have the obligation to set out a representation contract in writing. This contract must include at least the following: the names of the parties, the scope of services, the duration of the legal relationship, the remuneration due to the agent (acting as intermediary), the general terms of payment, the date of conclusion, the termination provisions and the signatures of the parties. If the player is a minor, the player’s legal guardian(s) should also sign the representation contract in compliance with the national law of the country in which the player is domiciled and the intermediary cannot receive any remuneration on the player’s behalf. Once the negotiations conclude, a copy of the representation contract must be filed with the relevant club’s national association.

In addition to this representation contract, the agent is obliged to sign the Intermediary Declaration for each transaction – i.e., the conclusion or extension of a contract – to the effect that he is acting as an intermediary. This declaration must also be filed with the relevant club’s national association, so that the intermediary can be registered. The association may also require the parties to provide additional documents and information.

The clubs have similar obligations when they use their own intermediaries with a view to concluding an employment contract with a player or a transfer agreement with another club.

An exclusivity clause frequently appears in management and representation contracts between agents and players. This clause generally prohibits a player from being represented by any other agent or intermediary in the negotiation and conclusion of an employment contract.

However, such clauses are illegal and, therefore, void in some countries, where they are prohibited by domestic law. According to fairly widely recognised principles of law, a worker cannot be prevented in any way whatsoever from dealing with several employment agencies to find work, and the same rules also apply in the football market. In such a case, the agent cannot enforce this type of clause in the context of a contractual relationship with the player.

In countries where exclusivity clauses are allowed, it is generally not in a player’s best interests to accept it because it would unnecessarily deprive him of using other possibilities to find new or better employment. If necessary, the average worker can use the services of as many employment agencies and websites as needed to find a new or better job; so why would the footballer do otherwise and be bound exclusively to a single agent – who, in any case, cannot provide any guarantees as far as employment and conditions?

On the other hand, there must be a guarantee that the agent will be paid for work done on the player’s behalf, even if the player ultimately decides to end the contract between them. In some jurisdictions, agents are protected by national legislation applicable to management or representation contracts. If necessary, the agent can also include indemnity and penalty clauses in the contract, which will have more effect than illegal or meaningless exclusivity clauses. At the end of the day, the best guarantee for the agent remains the bond of trust with the player, the regular and effective follow-up and advisory services provided, and the quality of the agent’s network. With such a great agent, the player would have no reason to leave.

The remuneration earned by football agents is very variable and can easily be between 5% and 10% of the player’s gross income, calculated based on the full duration of the employment contract with the club. For example, an agent acting as an intermediary who negotiates a new 3-year contract for a player with a salary of €100,000 per year can easily receive between €15,000 and €30,000 over the three years.

The introduction of FIFA’s Regulations on Working with Intermediaries has not changed the amounts collected by agents, although for the first time, it recommends a maximum remuneration of 3% of the player’s gross income over the term of the employment contract. Although this recommendation apparently is not widely followed in the current transfer market, setting a cap on the remuneration of the intermediary at least raises the issue of what is an appropriate remuneration for the services rendered by an intermediary. And what is an appropriate remuneration for the other services rendered by an agent.

Players have every incentive to ponder this question, as they often don’t seem to realise the crucial distinction between the two remunerations. Meanwhile, many agents naturally have no incentive to make that distinction either, thereby eliminating the need to justify the exaggerated sums they receive compared to the work done on behalf of their player.

The two types of compensations are distinguished as follows:

• The remuneration of the intermediary – who is not necessarily an agent, as intermediaries can also be mandated by a player to only intervene in a specific transaction – covers only the work done in negotiating an employment contract with a club on behalf of the player.
• The remuneration of the agent – who usually also acts as an intermediary on behalf of the player – consists of the combination of two distinct remunerations: remuneration for the agent’s role as an intermediary and remuneration for the agent’s follow-up and advisory role throughout one or more seasons.

All work deserves a salary, and naturally, an agent acting as an intermediary who successfully negotiates an employment contract or a contract extension should be given fair remuneration. The question which then arises is what constitutes fair remuneration.

FIFA’s Regulations on Working with Intermediaries set the maximum remuneration of an intermediary at 3% of the total gross income of the player throughout the entire duration of the negotiated employment contract. This, however is a non-binding recommendation that national associations are free to implement as is, modify upward or downward, or disregard entirely if they want. In addition to the sports regulations, some countries build on worker-protection legislation to limit the remuneration of intermediaries and set requirements that intermediaries must comply with.

Regulations aside, it’s up to the player alone to decide the remuneration paid to the intermediary, or to the agent acting as an intermediary, within any legal limits. In determining the fair remuneration payable to the intermediary, the player should take into account the effort and time spent, as well as the costs incurred in the contract negotiations. The player could also consider the end result (in terms of salary for the player) obtained through the intermediary’s negotiations.

In view of these elements, it’s not necessarily justified for an intermediary to be paid a fixed remuneration calculated as a percentage of the player’s income. A percentage-based system is likely to unfairly benefit or disadvantage one side or the other, based on the amounts involved and the duration of the employment contract. This becomes more apparent when the negotiations or renewal of the employment contract do not take a lot of the intermediary’s effort and/or time. For this reason, it would often be justified to remunerate the agent’s intermediary work on the basis of a pre-agreed hourly rate. The hourly rate can be capped, but it can also be completed by a bonus based on the final outcome of negotiations.

Comparing an hourly rate with a percentage-based system usually allows the player to very quickly realise which system best protects his financial interests, while providing fair remuneration to the agent. The player should bear in mind that any unreasonable remuneration paid to the agent is money that comes out of his pocket.

Each transaction is different, so it’s not possible to quantify what a fair remuneration for an intermediary would be. For example, a €100,000 remuneration could be justified and fair if the negotiations were long and difficult, and the player ended up with a very juicy employment contract worth of millions. At the same time, a €2,000 remuneration could be described as largely unfair and unreasonable if the agent simply made a phone call to agree to the contract renewal terms of a player who’s not making a fortune from football.

In any case, FIFA’s recommended maximum rate of 3% seems to be a reasonable cap for the work of an intermediary. For comparison purposes, a similar (but mandatory) remuneration cap applies to NBA and NFL agents. The cap is set between 2% and 4% (depending on the player’s income) in the NBA, and 3% for the NFL, in terms of the value of the contracts they negotiate for their players. Therefore, in the absence of special circumstances, it appears that a remuneration exceeding 3% for an agent who is only acting as an intermediary would be unjustified. Ultimately, it’s up to the player to be aware of the remuneration paid to the agent and to set that amount.

The same principles and the same 3% cap recommended by FIFA apply to intermediaries authorized by a club to conclude an employment contract with a player.

The vast majority of intermediaries are also agents. It is common for intermediaries to support, advise, manage, and defend the interests of players, in addition to negotiating contracts on their behalf, thereby fulfilling the duties of agents. Looking for potentially interested clubs and connecting players with some of them is part of the agent’s role, because these tasks do not fit into the framework of actions taken by intermediaries, as defined by the Regulations on Working with Intermediaries.

Agents must be remunerated for this work, in addition to other remuneration for their work as an intermediary. Neither national legislations nor FIFA have set explicit amounts for the remuneration of the work of agents. As a result, this remuneration should be determined by the player and set by contract between the parties. In any case, when determining the remuneration, the player should take into account the type and extent of services the agent provides, which should be set in writing in the management contract.

Because the completion of follow-up, advisory, and management duties, combined with a defence of the player’s interests, takes time and is a long-term commitment, there is some justification for the agent’s remuneration being calculated as a percentage of the player’s gross salary rather than per hour of work. The remuneration should be reassessed periodically – every year, for example – to reflect the actual services provided by the agent, in case these have significantly changed or were initially over or underestimated.

Moreover, in determining the agent’s overall remuneration, the player should find a balance between the remuneration for the agent acting in his capacity as an intermediary and the agent’s remuneration for his follow-up and advisory role. The balance should take into account the time and effort that the agent puts into each role.

The remuneration for the agent’s follow-up and advisory roles does not necessarily cover the negotiation of any advertising contracts on the player’s behalf. The remuneration for negotiating such contracts can be separately established in the management contract between the player and the agent. Given that this amount is not based on the player’s salary, but on income and/or services that he receives, in addition, it is generally accepted that remuneration may reach 5% or more of the value of the advertising contract successfully concluded by the agent. Once the contract is signed, this remuneration may be paid by the player to the agent in one or more installments.

As things stand today, the system put in place by the Regulations on Working with Intermediaries is just as ineffective as the previous Players’ Agents Regulations and leaves the door wide open to all kinds of abuse. One of the best illustrations is the fact that the vast majority of agents are not paid by their clients (the players), but by football clubs – in other words, the same entities against which the agents are supposed to defend the interests of players.

The problematic of conflict of interest of the agents towards their players, which plagues the field but which many actors of the football world have taken to serve their own interests, does not serve the interests of the players. Players who have often never been informed transparently by their agents about the subject and how things could be done otherwise, in a normal way: have paid their agents. However, contrary to what can be said to them by those who wish to continue to benefit from the current system, players have far more advantages than disadvantages to pay their agent themselves.

The advantages for players include:

Better financial control

In the first place, the money belongs to the player before being money of the agent.

Each club wishing to hire a new player has a designated maximum financial envelope that should enable it to cover the player’s salary, other financial and/or in-kind benefits for the player, the agent’s remuneration, and if applicable, the transfer fee and the remuneration of the intermediary who negotiated the transfer.

The total portion of the club’s financial envelope destined for the player includes (i) the salary, (ii) any other financial and/or in-kind benefits (including bonuses), (iii) the remuneration for the agent’s role as intermediary, as well as for the agent’s follow-up and advisory role. However, this remuneration package cannot include remuneration for the agent’s involvement in the negotiation of the transfer agreement involving his own player. Indeed, an agent is not allowed to negotiate such a contract on behalf of a club against which the agent is expected, at all times, to defend the interests of the player. The result would be an unacceptable conflict of interest.

It would be in the player’s interest to receive the full remuneration directly, and then pay out the agent’s portion, ensuring that he retains control of the money at all times. In this manner, if the player believes that the agent is no longer due payment for whatever reason during the course of the contract, the money would still be in his possession and control. The player’s control over the money would avoid him having to convince the club not to pay an agent who is not performing, in cases where the agent is paid directly by the club in several installments. It would also save the player from taking legal action against the agent for money that the said agent would have already received from the club without having performed the contracted tasks for the player.

The advantage of installment payments

Another advantage to the player receiving the remuneration of his agent from the club is the ability to pay it to the agent, by installments, rather than in a lump sum, according to what was agreed upon in the management contract.

While it seems legitimate that the remuneration for the agent’s work as an intermediary is paid as a lump sum following the conclusion of the employment contract (since that marks the fulfilment of the agent’s work as an intermediary), nothing requires the remuneration for the agent’s follow-up and advisory roles to be paid as a lump sum and in advance for a year or even for the duration of the employment contract. Clients and employers do not pay their representatives or employees months in advance. So why should that be the way players pay their agents?

A staggered payment system enables the player to halt or reduce payments to the agent if he (the player) is no longer receiving a salary. In such a case and depending on the circumstances, it may indeed be justified for the agent to no longer receive a full remuneration based on a salary that the player is no longer receiving. Furthermore, by making installment payments, the agent’s future compensation is held in the player’s account and provides interest income in the meantime.

Better control on their agents’ work

Last but not least, the club paying the agent’s remuneration to the player, and the player’s subsequent staggered payments to the agent, enable the player to have more control over the agent’s work.

Indeed, through periodical payments to the agent as and when work has been performed, the player can be assured that the agent will perform tasks with all due diligence, fidelity, and loyalty, and work only towards advancing his best interests, thus avoiding conflict of interest.

But we must also consider the disadvantages. Are there really any disadvantages for players who pay their agents themselves? Are there any practical impediments to players paying their agents’ remuneration themselves? The answer is no: Automatic bank transfers can be made with a single mouse click. Are there any tax disincentives? Most likely not: in most countries, this would not be a problem. That is because the Regulations on Working with Intermediaries requires that the payment made by the club (in this case to the intermediary) is done “on behalf of the player” and in accordance “with the terms agreed between the player and the intermediary.” This means that even if the club paid the agent directly, the player would still be liable for any tax obligations that may ensue from this remuneration. There may be a tax disadvantage in a small minority of cases, but it is likely to pale in comparison to the aforementioned advantages. Even if that were not the case, the player should not take part in tax evasion schemes, either alone or together with his agent. It is simply not worth it.

The examples below show how players could pay their agents. Players should also take into account any remuneration methods (percentage, hourly rate, flat fee, etc.) that are required or prohibited by the applicable national legislation. It is the agent’s job to inform and advise the player in this regard.

Example 1

A job placement commission on the first annual salary - In order to transfer to a foreign club, you enter into a contract with an on-site agent and agree on a placement commission of 5% of your gross income for the first year of employment, which will be negotiated with the club, as well as management services paid at a rate of 7% of the same income, for the entire duration of the employment contract. This makes sense, as the placement work is done only once, at the beginning of the first year, while the management work will extend over time.

Negotiate an increase in your base salary - You ask your agent to negotiate with the club a higher salary than the one you are targeting, in order to compensate for the “loss” of income related to the fact that you will have to pay your agent from your income. The agent manages to negotiate a 3-year contract including a gross annual salary of €96,000, match bonuses, as well as the free provision of a car and an apartment.

A management contract that can be canceled at any time - Upon signing of the employment contract, the club pays you your first salary. You then pay your agent his commission of €4,800. Thereafter, every quarter, you pay him the sum of €1,680 for his management services (7% of €288,000 / 12) by means of a standing order. After two years, as you are well integrated into your new environment, you decide to give up the management services and terminate the management contract, while paying your agent what is due until the date of its termination.

Example 2

An intermediary paid an hourly rate - A club from a nearby town is interested in hiring you. In order to complete the negotiations of your employment contract, you hire an intermediary and enter into a placement agreement setting his remuneration at an hourly rate of US$400, with a cap of US$10,000. The contract also provides that if the intermediary manages to negotiate a signing-on bonus and a commission on any future transfer to another club, he will receive 30% of the former and 20% of the latter.

Successful negotiations - The intermediary gives you complete satisfaction by negotiating a 2-year employment contract fixing a gross annual salary of US$216,000, a US$50,000 signing-on bonus, match bonuses, and a 30% stake of any profit from a potential future transfer to a new club. The intermediary invested 10 hours of his time in this relatively simple transaction.

Fair remuneration for an intermediary - Once the employment contract is concluded, the club pays you your first salary and your signing-on bonus. You then pay your intermediary his US$4,000 placement commission (10 h x US$400), along with his US$15,000 portion of the signing-on bonus. You will only pay the intermediary his portion of any profit from a future transfer to another club if/when it takes place.

A conflict of interest can be defined as a situation in which a person or organisation has multiple interests, whether financial or other, one of which could possibly affect their motivations or influence their decisions. Conflicts of interest exist not only when reasons based on specific circumstances suggest that a decision definitely was unduly influenced by a secondary interest, but even simply when there is a question that a decision might have been unduly influenced.

Clearly, it is very easy for an agent or intermediary to be in a situation of conflict of interest – particularly when the agent acts on behalf of both a player and the club where he plays or wants to play. The agent’s and intermediary’s duty of diligence, fidelity, and loyalty toward the player compels them to not only avoid but to refuse anything which could give rise to the suggestion of a conflict of interest. The Regulations on Working with Intermediaries provide for a situation where an intermediary may set aside – under strict conditions – a conflict of interest that exists with another party. On the other hand, an agent can never, under any circumstances, have a conflict of interest, and has no other choice but to avoid them by working solely on the player’s behalf. In particular, that means the agent cannot accept remuneration from a club for acting as an intermediary on behalf of a player that the club has hired.

Intermediaries are not necessarily agents. The intermediary may also be a mediator, a lawyer, a relative of the player, or a person who is connected to the club. This person has simply been mandated by one of the parties or by both to take part in the employment negotiations between the club and the player.

The intermediary may have a conflict of interest – e.g., due to a relationship with one of the parties or because the intermediary has already defended one party’s interests in the past with respect to a transaction, a representation agreement, or common interests. However, if both parties agree and they expressly confirm the agreement in writing before the start of the negotiations, and if the other conditions set by the Regulations on Working with Intermediaries are met, the intermediary’s conflict of interest can be set aside.

The possibility for an intermediary to set aside a conflict of interest is logical and practised in many other business and social situations. However, this option implies agreement, which will only be the case if each party is convinced that the interests of all involved will be protected at all times, despite the fact that the intermediary has revealed a conflict of interest. It is therefore necessary for the parties to have a relationship of trust and confidence insomuch that all those involved are working to achieve a common goal. This will often be the case when negotiating an employment contract between a player and a club: both sides are pursuing the common aim of reaching an agreement. The intermediary’s interest (via remuneration) is that the player and the club agree on the terms of the contract, which leads him to take a neutral position – thereby eliminating the conflict of interest that existed prior to the start of negotiations.

For these reasons and under these circumstances, only, an intermediary may participate in negotiations – similar to mediation – while preserving the interests of both the player and the club without the pre-existing conflict of interest causing a problem. However, the situation changes completely if the intermediary is also the player’s agent at the time of negotiating the employment contract, or could become the player’s agent after the conclusion of the contract. In such cases, the intermediary must under all circumstances refuse to be put in a situation of conflict of interest.

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.

For many years, and now more than ever, almost all intermediaries and agents mandated by the players are paid by the clubs rather than by the players themselves. The latest statistics released by national football associations show that this trend is continuing. While the Regulations on Working with Intermediaries do give clubs the possibility, under certain conditions and only “on behalf of the player,” to pay the intermediary directly, such direct payments by a club to an agent acting as an intermediary are illegal, as they are in breach of the agent’s duties to the player and of the club’s duty to ensure that there are no conflicts of interest for either the club or the intermediary or the player.

This situation is, especially, problematic given that the vast majority of intermediaries also double up as agents. Indeed, many of them not only negotiate employment contracts on behalf of their players but also look for potential clubs and introduce their players to them; they support, advise, manage, and defend the interests of their players over the long term, which are all tasks that are also carried out by agents. The obvious conclusion is that the vast majority of agents on the market are currently at fault with regards to their duties towards players.

Why can an intermediary be remunerated by a club, “on behalf of the player,” whereas an agent who also acts as an intermediary to negotiate a contract on behalf of the player cannot? There are two scenarios:

1. The club pays the agent’s entire remuneration in a lump sum, after the contract is signed. This remuneration is generally made up of both the payment relating to the intermediary role and the payment for the agent’s follow-up and advisory role.
   
   As stated in the “Advantages of Players Paying their Agents Themselves” chapter, it is in the player’s interest to pay the agent, and to do so by installments – at least as far as the remuneration for the agent’s follow-up and advisory role. The agent is obliged to protect this interest – and the player’s interests in general. The agent’s interest in being remunerated by the club must therefore take a secondary position. The agent’s duty to the player is breached if the agent agrees to be paid by the club and to receive the full remuneration for the duration of the contract at once, as that means the agent’s interests are being put before those of the player, contrary to all commitments.
   
   The agent could naturally argue that the player consents to direct payment. However, such consent is only valid if the player gives it knowingly, in an informed manner, as per the rules of consent laid down in national legislations applicable to contracts. It is clearly not in the player’s interest to give such consent, and he would never do so if the agent provided all the ins and outs of the question, because that would, de facto, be acting against his (the player’s) own interests.
   
   Therefore, in order to meet the necessary levels of diligence, fidelity, and loyalty to the player, the agent has a duty to refuse any payment from a club, even if the payment is proposed by the club. If necessary, the agent should inform the club and/or the player why it would be unacceptable to be paid by the club.


2. The situation where the club pays the agent’s remuneration by installments over several months or years following the conclusion of the contract. This remuneration covers both the payment relating to the intermediary role and the payment for the agent’s follow-up and advisory role on the player’s behalf.
   
   The situation is similar to what has been described above: the agent cannot receive any payment from the club, even “on the player’s behalf,” because in doing so, the agent’s own financial interests would be put before the player’s.
   
   Furthermore, if a club were to directly pay the agent by installments following the conclusion of the contract agreement, the club would have a financial hold on the agent, which would likely cause a conflict of interest when the agent may be called on to oppose the club in the player’s best interests. The agent must refuse to be under the influence of a club by purely and simply refusing any payment from a club, whether it is staggered or in a lump sum.

Many agents are mandated by clubs to act as intermediaries in negotiating transfer agreements between the clubs. The most common situation is that the agent takes part in transfer negotiations that involve players he represents. Such agreements set the amount that a club must pay another club in order to obtain that club’s agreement to terminate the player’s employment contract early. The player himself is generally not directly a party to these negotiations.

However, as was stated in the chapter “Agents must reject any conflict of interest,” agents are prohibited from taking part in any negotiations concerning their players on behalf of one or more clubs. Indeed, agents who agree to act on behalf of either club or both clubs are placing themselves in a conflict of interest that prevent them from being able to properly defend the players’ interests as and when required. As agents are forbidden from acting as intermediaries on behalf of a club in any transfer agreement concerning their players, they cannot claim any remuneration whatsoever in connection with the transfer fee set by the two clubs involved in the transfer agreement.

If necessary, agents should inform the club of the reasons why they cannot accept such terms. Agents who breach this obligation are liable to the same civil and criminal consequences as described in the chapter “Agents Must Reject Any Conflict of Interest”.

The prohibition of negotiating a transfer agreement extends to any other agent or intermediary who might be mandated by the player’s agent to negotiate this agreement on his behalf, so long as the first agent plans to receive a share of the second agent’s remuneration after the transfer agreement. In such a case, both agents would be at fault.

A non-problematic situation is where the agent who is hired by a club as an intermediary to negotiate a player’s transfer (i) has no contractual relationship, whether directly or indirectly, and present or future, with the player in question; and (ii) has no player playing or who is negotiating to play for that club. In this case, the agent acting as an intermediary can devote himself fully and exclusively to his role negotiating on behalf of the club, without any conflict of interest arising. FIFA’s Regulations on Working with Intermediaries recommends a remuneration cap for intermediaries at 3% of the transfer agreement, payable by the club.

Players are the commodity of the football world. They are the ones that fans want to see and who generate income for clubs, national associations, agents, and millions of others. Paradoxically, the players’ interests do not prevail in a world where the race for higher profits and sporting success, at any cost, often reduces players to a mere product to be exploited for the benefit of third parties. The current transfer system is a problem, third-party ownership (TPO) is a problem, agents are a problem, and the players are the first victims of these problems, along with many clubs.

In 2015, FIFA replaced the Players’ Agents Regulations, and the licensed agents system that regulation imposed, with the Regulations on Working with Intermediaries that had the following key objective:

“One of FIFA’s key objectives is to promote and safeguard considerably high ethical standards in the relations between clubs, players and third parties, and thus to live up to the requirements of good governance and financial responsibility principles. More specifically, FIFA considers it essential to protect players and clubs from being involved in unethical and/or illegal practices and circumstances in the context of concluding employment contracts between players and clubs and of concluding transfer agreements.”

Today, we must face the fact that neither this regulation nor its implementation by national associations has improved the protection of players and the majority of clubs against illegal and unethical practices. These practices continue and are not about to stop, because the administrative and monitoring system established by the regulations is doomed to fail, and the national associations – who are tasked with fighting against these practices – lack the practical and legal means to hope to catch even a few culprits.

The almost institutionalised conflict of interest agents have with regards to their players – especially when agents are paid by clubs rather than their clients and when they receive transfer fees that they are not entitled to – is one of the main problems. In fact, many agents today abuse the weakness of the system to the detriment of the players’ interests, which should be put back at the centre of priorities. The players, as well as a majority of clubs, are now prisoners to a system they are forced to follow and which distorts the market because of the obvious interdependence between agents and a minority of clubs: the rules on competition and the players’ rights to economic freedom are clearly under attack. In addition, the system promotes criminal behaviours, which everybody knows about but are almost impossible to counteract under the current system.

The Regulations on Working with Intermediaries seems to be missing the point when it imposes a system of declarations of compliance on agents who are free electrons in the football environment. Neither FIFA nor the national associations have or will ever have appropriate and effective means to ensure the truthfulness of these declarations and the respect of the agents’ duties towards their players. The system in place also seems to miss the point when it asks players to “use reasonable endeavours to ensure that no conflicts of interest exist or are likely to exist either for the players and/or clubs or for the intermediaries.” That’s because players have no way of ensuring this. The world of football cannot rely either on national or international authorities, who have other priorities and too few resources to control a system that should be focused in the first place on protecting the workers (the players) from the direct and indirect effects of illegal and unethical practices, whether they play in the Champions League or in a less publicised championship.

As FIFA has not achieved its goals with regards to agents, and as it cannot afford to keep enforcing such an ineffective regulation, it could draw on solutions that have been successfully implemented in other sports federations that have chosen to take action and focus their attention on the entities over which they have effective control – namely, the clubs. It does seem like it would be more effective to threaten clubs with sanctions if they remunerate agents and to impose regular checks on them, while also continuing to oversee the relatively few intermediaries who work exclusively for clubs. Holding clubs accountable and giving the players the responsibility for paying their agents would ensure the best guarantee of the quality of services provided by their agents. The professional associations of agents would then have a genuine interest in regulating the profession, which should also improve the quality.