Agent Commission
Intro
The whole 'who pays the agent dance' is a funny circus. Many clubs claim to refuse to pay the agent and demand that the player pays the agent.
It is a remarkable theater because in the end it is always the club that pay's either direct to the Agent or via the payments to the player.
Who has to pay the agent and is he also entitled to commission in the event he has not been involved in (all stages of) the negotiations are often recurring questions. Answers can be found hereunder.
Who has to pay
Ground Rules
The Agent has to be payed by his client. The Client is either the Club or the Player. Both is not allowed.
These two principles are laid down the Players' Agents Regulations articles:
- 19 par. 4. '..the Agent has to be paid by his Client only', and
- 19 par. 8. '....the Agent is required to represent only one party when negotiating a transfer and shall avoid all conflicts of interest in the course of his activity.'
This all looks clear and unambiguous, however:
- in certain countries the applicable national law forbids that an Agent charges a player. For instance countries that have ratified ILO treaty C181- Private Employment Agencies Convention, 1997 (No. 181).
- for other reasons an Agent and his client often prefer that the other party remunerates the Agent, and the Player Status Committee allows such under certain conditions.
The PSC has decided in case 1121835, that a commission agreement between a Player and a Club (non Client) had to be respected because the evidence clearly had demonstrated that the Agent ''..could not have possibly been remunerated twice for his services'. So at least this is one criterion that has to be met. Only one party is allowed to remunerate the Agent.
In the only other published PSC decision regarding a conflict between an Agent and a club over a commission agreement, the PSC also judged in favor of the Agent. The PSC ruled that the Club had not been able to proof that the Agent had represented the Player also or had been payed by the Player also.
Resume
- Client has to pay the agent
- Agent and non client can agree that non client remunerates the Agent provided that the Agent is not paid by his Client. It is not allowed to be paid by both parties.
Agent has not (re)negotiated the new contract
Is the agent entitled to commission when he has not negotiated an agreement but does have an representation agreement with the player?
The regulations do not have an provision for such event however apparently the Bureau Player's Status Committee has sent a [letter] [1] to all agents in June 1999 regarding this matter in which is stated:
'' Bureau of the Players’ Status Committee stated that it had discussed at its meeting in Zurich on 27 August 1998 cases in which players’ agents had requested a commission from players, even though the relevant employment contracts had been concluded between the players and the clubs without the agents’ involvements. In this respect, the Bureau of the Players’ Status Committee had held that players’ agents’ activities must be causal to the conclusion of employment contracts and that, as a general rule, if an employment contract is signed without the involvement of a particular players’ agent, the player concerned does not owe any commission to the agent. "
This is all very nice but a letter from the Bureau of the Status Player Committee is not exactly a regulation adopted under FIFA Statutes. Never the less the the single Judge of the PSC refers to it in it's decision of 21 November 2011, no. decision 1111412:
' [.] players’ agents’ activities must be causal to the conclusion of employment contracts and [. ] as a general rule, if an employment contract is signed without the involvement of a particular players’ agent, the player concerned does not owe any commission to the agent.' -paragraph II.8
'[.] players’ agents may, nevertheless, claim commission if they have not been actively involved in a transfer, if a clause to this effect is explicitly and unequivocally stipulated in the relevant representation agreement.' paragraph II.9 :
The representation agreement between the parties to this dispute contained the following stipulations:
[the Agent] “shall be remunerated in any event, notwithstanding his involvement and the bringing about of the certain transaction”.
' “The remuneration due to the players’ agent[i.e. the Agent] is payable by the client [i.e. the Player] in a lump sum payment due at the start of each contract entered into by him, even if the players’ agent has not brought about the particular transaction”
Therefore the PSC ruled that the agent was entitled to a remuneration even though he was not involved.
It would have made more sense if the PSC had referred to the CAS award of 5-12-2006 (CAS 2006 /A/1019) where it was stated that:
"Without an express provision for the Agent to be remunerated not withstanding his involvement and the bringing about of a certain event i.e. the conclusion of an agreement for the provision of the Player's services, he will not be entitled to claim a reasonable remuneration on a contractual quantum merit basis. In the absence of an agreement to the contrary, the fact that the Player placed his "placement rights" exclusively with the Agent does not prevent the Player from contracting himself and having done so before the Agent concluded any contract (which he did not), he is under no liability to pay any commission. If the Player had appointed the Agent as a "safe agent" the Player could not employ any other agent but if he contracted himself he could not be liable to the Agent to pay commission or damages."
[1]:
Unfortunately this letter can not be found in the list of published circular letters