Thomas Geukes Foppen, attorney at law at Brantjes Advocaten provides us just before the start of the summer transfer window with a few tips that might prove very usefull.
In my latest blog I wrote about the significant changes due to the coming into force of the FIFA Regulations on Working with Intermediaries as per 1 April 2015. In the last few months I received several questions from (aspiring) intermediaries, which has brought me to the following tips for the upcoming summer transfer window:
1. Do not forget to register yourself as an intermediary
This might seem rather obvious, but it turns out that many aspiring intermediaries intend to register themselves only after they are sure that they will be involved in a transfer. The registration as an intermediary with a national football association can however take up to several weeks and this might be problematic for the intermediary’s role in a possible transfer. In order to be involved in the transfer (either on the player’s or on the club’s side) it is mandatory for an intermediary to be registered with his national FA. Furthermore, at the time of a transfer the applicable contracts, such as the representation contract, the employment contract and a transfer agreement, must be disclosed. The role of the intermediary must be made clear in every transfer. If not, the intermediary shall not be allowed to be remunerated by the player or the club involved. It is therefore essential that the registration of the intermediary has been completed before being involved in any transfer or negotiation activities. One can not expect a club and a player to await the intermediary’s registration.
2. Take care of the representation contract in time
Existing representation contracts of (former) licensed FIFA players’ agents should be reviewed and amended in conformity with the Regulations on Working with Intermediaries of FIFA, but also the national FA concerned. As mentioned above, the (new) representation contract must be agreed upon and signed before entering into the negotiations, as they must be disclosed when completing a transfer. This must be repeated with every transfer in which the intermediary is involved. The national FA’s and FIFA will not allow any payment to an intermediary if a complete representation contract is missing. Such contract should also mention the percentage (fee) due to the intermediar
3. Seek legal advice regarding national regulations and national laws
The deregulation of players’ agents per 1 April 2015 by FIFA has brought along larger responsibilities for the national FA’s. All national FA’s now have their own regulations on working with intermediaries, which must also take into account the national mandatory laws. As announced by FIFA, intermediaries bear an own responsibility to obtain legal advice regarding these national rules and regulations. During a possible legal procedure (or arbitration) an intermediary can not take the position that he was unaware of the local rules. For example, in the Netherlands mandatory law prohibits a player to directly compensate an intermediary for placing him at a new employer (i.e. the club). Payment of the intermediary’s fee should thus be made by the club and not by the intermediary’s client (i.e. the player), even though this would technically be contrary to Art. 7, para. 5, of the FIFA Regulations on Working with Intermediaries.
4. How can you prove that you have an ‘impeccable reputation’?
The FIFA Regulations on Working with Intermediaries require a registering intermediary to prove that he has an impeccable reputation, in particular that no criminal sentence has ever been imposed to him for a financial or violent crime. It is however up to the national FA’s how to assess this. The FA’s will generally be satisfied if an intermediary provides a document that is being recognized under national laws in this regard. For example, the English FA requests for a criminal record check of the Criminal Record Bureau. The Dutch FA (KNVB) requests a certificate of good conduct (Verklaring Omtrent Gedrag), which can be requested at the local authorities. The KNVB - and several other FA’s for that matter – will however also be satisfied with a similar document that has been obtained in the country where the natural or legal person has been registered. If an intermediary thus intends to be involved with international transfers, it is therefore advisable to obtain such certificate in the English language as well.
5. Legal advice
With the nearing summer transfer window, many aspiring intermediaries will want to be involved in football transfers. In that regard priority must not only be given to the actual registration as an intermediary, but also to the taking care of all the relevant contracts and certificates within due time. As mentioned, clubs and players will not want to wait for intermediaries to have their documents organized.
If you need any information, please contact me.