Introduction

In June 2009, FIFA started the process to alter their regulations and control over agents, which culminated with approval of the new Regulations on working with intermediaries which came into force on April 2015[1]. When these regulations came out, it was viewed as a positive step, especially for clubs and federations, on what was an era-changing framework of a well-known distorted system. FIFA’s initial idea appeared to be a deregulation of the system, giving way to free competition, but by changing the licensing system, FIFA and the national federations kept the power to continue to regulate the system. When FIFA presented the Regulations in 2014 it mentioned that the main goals of this reform were to introduce a new system that would be easier and more straightforward to establish and run, with the possibility for bespoke systems at national level.

However, these changes to the system have not accomplished their goals and due to several interventions at the domestic level, significant issues and criticism have arisen mainly from national federations who claim that the system has enforcement problems and lacks harmonisation in several areas. It is also important to mention that with the FIFA deregulation, players and clubs could appoint whoever they desired as their intermediaries (i.e, family members of players or club directors), and this has led to a decreasing lack of expertise and professionalism in this trade.

The Italian Government, in Article 1,373 of the Budget Law of 2017[2] approved a new supervisory course of action towards sports agents requiring them to be registered with CONI. CONI consequentially created in 2017 the Regulations, ruling the requirements and procedural aspects for registration in the National Register of Sporting Agents (Regolamento CONI degli Agenti Sportivi)[3]. The abovementioned situation has understandably had an effect on the football industry giving way to the publication by the Italian Football Federation (FIGC) of its own Sporting Agents Regulations (Regolamento Agenti Sportivi FIGC)[4] These regulation bring back an obligatory exam for sports agents, split into two phases: first an exam supervised by CONI (general part), and then an exam supervised by the respective national professional sports federation under which the sports agent desires to operate, in the case of football FIGC.

However, not all sports agents are required to take the exam. Italian football agents that passed the former FIFA exam before the 2015 “deregulation” are exempt. However, these agents are still obliged to register with CONI and the national sports federation (FIGC). The deadline for registration with the CONI and the FIGC was the 13th of July 2019[5], but a legal grace period[6] was given until 31 December 2019, to football agents that registered between April 2015 and December 2017, allowing these sports agents to operate in the transfer window in the summer of 2019 as “agenti temporani”. The consequences for not respecting this deadline are according to FIGC Regulations are that all conclusions, terminations or renewals of a professional sports contract and all conclusions of a contract for the transfer of a professional sports athlete are declared null and void.[7] So, all sports agents registered with FIGC after the 1st of April of 2015 from the 31st of December 2019 are required to take the exams.[8]

The CONI Exam

To be able to do the exam of CONI (general part) the following requirements have to be observed by the agents:[9]

  1. Be an Italian citizen or a citizen of another Member State of the European Union; 
  2. To have not been declared disqualified, incapacitated or bankrupt, except for the effects of rehabilitation and debiting; 
  3. Be in possession of a secondary education diploma of second degree or equivalent qualification; 
  4. They have not been convicted of unintentional offences in the last five years;  
  5. They have not been convicted for the crime of sports fraud as per Law 401/1989 [10]or for the crime of doping as per Article 586 bis of the Italian Criminal Code;[11]
  6. They have not been sentenced to a term of imprisonment of more than five years; 
  7. They have not reported sanctions following the ascertainment of a violation of the Sports Antidoping Regulations by CONI or the provisions of the WADA World Anti-Doping Code[12]
  8. They have not reported disciplinary sanctions for sports offences; 
  9. Not have disciplinary sanctions in place and not yet completely discounted within the national professional sports federation in which it intends to operate; 
  10.  Have carried out one of the following training activities: An internship for at least six months with a sports agent who actually and regularly carries out the activity. The effective and regular exercise of the activity is demonstrated by the awarding of at least five assignments per year for three consecutive years within the same national professional sports federation. At the end of the traineeship, the agent must issue a certificate of the trainee’s activity; Attendance of training courses, as per art. 15; 
  11.  Pay a secretarial fee (EUR 50.00)

All the abovementioned requirements must be observed at the time of submission of the application for the exam and must remain observed until the conclusion of the whole examination process.[15] The exam of CONI is constituted of a written test (30 multiple choice questions with 4 possible answers, with the time of 20 minutes for conclusion), and upon approval of the written test (20 correct answers needed), an oral exam. In the examination process the candidate will be evaluated in the areas of sports law, private law and administrative law. The oral examination will occur in Rome in accordance with a calendar provided by CONI on its institutional website and its online platform for the registration of Sports Agents. In the oral examination, the candidate shall be asked at least 3 questions (one for each area of law subject to examination), out of a pool of 20 questions selected by the Committee for Sports Agents (C.F.A.S). Approval on the oral examination is granted if the candidate obtains a sufficient average (6 out of 10) on each of 3 questions presented to her/him.[16]

The FIGC EXAM

Following the approval on the general part exam of CONI, requirements for the special part exam of FIGC need to be observed. Potential candidates for the FIGC exam need to fulfill the following requirements:[17]

  1. Be an Italian citizen or a citizen of an EU Member State;
  2. Not have been declared banned, incapacitated or bankrupt, without prejudice of the effects of debts and rehabilitation.;
  3. Having at least a high school degree (or equivalent);
  4. No convictions of non-culpable crimes in the previous five years;
  5. No conviction of the crime of sporting law 401/1989 of Italy
  6. No reported disciplinary sanctions for sport offenses;
  7. No reported inhibitions of sporting ambit for more than 1 year in the last 3 years, except for penalties for gambling conduct
  8. No reported sanction of foreclosure or equivalent within the national and international sports regulations;
  9. No reported sanctions after violating CONI’s anti-doping sporting rules or the provisions of the WADA World Anti-Doping Code;
  10. No sanctions in place and not completely fulfilled in the context of FIGC or any other federation associated with FIFA, for example, not having completed payments of any financial payment or not complying with the payment of installments
  11. To fulfill the payment of the administrative fee and respect the subjective obligations required by numbers 2,3,4,5 and 6 of the FIGC Sports Agent Regulations

The given requirements must be fulfilled at the time the application for admission for the special exam of the qualifying examination and must remain fulfilled until the conclusion of the whole process. The payment of the administrative fee of 100 EUR must be demonstrated through a certified copy of the accounting officer.[18]

The exam is 20 questions selected by C.F.A.S, with 3 possible answers (4 questions related to the AIC/FIGC Professional League Collective Agreements, 4 questions regarding FIGC Internal Organizational Rules on Membership, 4 questions related to the FIGC Sporting Agents Regulations, 4 questions related to the FIGC Statute and 4 questions related to the FIGC Sporting Justice Code). Candidates must give the most correct answer amongst the answers given. The exam will have a maximum time of 30 minutes and approval will be granted by 17 correct answers.[19]

Registration

The provisional federal register of the FIGC

FIFA’s reform has required the affiliated football federations (including the FIGC) to abandon, unless otherwise provided by the law of the country concerned, the previous system, which provided for an access test and the issuance of ad hoc licenses, to move to a more agile organisation, consisting of the registration and monitoring of those who exercise the activity after identifying minimum requirements for registration.[20]The Federal Council of the FIGC, therefore, saw the need to adopt a discipline in harmony with the principles and directives dictated by FIFA in the Regulations on Working with Intermediaries, with the Official Communiqué 190/A of 26 March 2015[21] issued the new Regolamento per i Servizi di Procuratore Sportivo. [22]

The text of the Italian federation included 9 articles.  The first offers the terminological definitions used in the text and in addition a body of transitional provisions that preceded 4 attachments, facsimile of representation contracts, self-certifications and application for registration. The document substantially consistent with the original international matrix and the minimum requirements of the FIFA Regulations, essentially a transposition of the minimum standards/requirements, with some implementations (for example, the qualification of the “protagonists”, the best framework of an “impeccable reputation”, etc..), operated at national level with the main aim of trying to make the maximum consistency between the national legislation with that of the International Federation.[23]

However, the introduction of the recent discipline introduced at the state legislative level has led, in the world of football, to a reform and overcoming of the “Regolamento per i Servizi di Procuratore Sportivo” already adopted by the FIGC.[24] Following the reform of the Budget Law and the Prime Ministerial Decree of 23 March 2018[25], the FIGC, with its Official Communiqué no. 80 of 26 June 2018[26] (published therefore even before the adoption by CONI of the Sporting Agents Regulations), pending adaptation to state and CONI regulations, decided before the creation of the provisional Federal Register of Sporting Agents, dictating “transitional/temporary provisions” in order to allow those already on the previous list to legitimately exercise their activity.[27] The provisional Register, established during the FIGC’s Commissarial regime, was then extended pending the entry into force and full operation of the CONI Sporting Agents Regulations (appointment of commissions, arbitration chamber and so on, “and in any case no later than 30 June 2019”).[28] As required by the Official Communiqué of the Federation, registration in the Register was allowed to:

  1. Italian citizens or citizens of another EU member state who hold an entitlement issued before 31.3.2015 and who possess, on the date of registration in the provisional Register, at least the requirements of Art. 2 of the Prime Ministerial Decree 23.3.2018; 
  2. Subjects entered in the FIGC Register between 1.4.2015 and 19.4.2018, who possess, on the date of registration in the provisional Register, at least the requirements of Art. 2 of the Prime Ministerial Decree 23.3.2018;
  3. Nationals of another EU member state authorized to exercise the activity of Sports Attorney in the federal framework of their country of origin who, on the date of registration in the provisional register, meet at least the requirements of Art. 2 of the Prime Minister’s Decree 23.3.2018″[29].

As of 1 January 2019, the federal law provided that registration in the Federal Register was subject to the formalities, terms and conditions laid down in articles 2, 6, third paragraph, 7, 8, 9, 10 of the Prime Ministerial Decree of 23 March 2018 “and/or the implementing acts still to be adopted”, specifying that the persons referred to in letter a) were “exempted from compliance with the formalities, terms and conditions laid down in the Prime Ministerial Decree of 23 March 2018 and/or the implementing acts still to be adopted, limited to passing the licensing tests”. [30] The above has evidenced that this new system has definitively replaced the old system, which was in line with the Regulations on Working with Intermediaries adopted by FIFA in 2014.[31]

The Federal Register

Entry in the Federal Register is permanent, involves the payment of Secretariat fees (500,00 euro) upon registration and must be renewed annually (at the cost of an additional 500,00 euro as an administrative fee). The relevant request for renewal, to be addressed to the Commission (CFAS), must be sent within 30 days of the end of each football season.[32]

Agents (EU citizens)

The FIGC Regulations provide clarification on how EU sports agents are regulated. Alluding to the CONI Regulations it states that the new Register kept at CONI has two sections: a section that contains all Italian candidates who have the qualifying test and a second section that contains the denominated “agenti sportivi stabiliti” which contains all the sports agents from other EU countries qualified to practice as an agent in another EU Member State (emphasis on the fact that since 2015 each national federations decides if they want to maintain a licensing system where an exam is mandatory or just a registration system where an annual fee payment suffices). After the registration formalities have been dealt and once it has been proven that the Agent is allowed to pursue this activity in his state of origin, the Federal Commission of Sporting Agents provides for the registration in the special section of the Federal Register, without the qualifying test. Moreover, after 3 years, the Agent established in good standing with all the obligations provided for in the CONI Regulations and the FIGC Regulations, who has exercised in Italy the activity of Sporting Agent, has the right to obtain registration in the Federal and CONI registries. without any obligation to provide proof of entitlement of his home country.[33]

Agents (Non-EU citizens)

The FIGC Regulations in its article 9 provides regulations on the activity of Sport Agent performed by non-EU nationals. Regarding this, it provides in its first provision that such agents will be able to operate exclusively “in agreement” with another agent registered in Italy, reminding a “modus operandi” initially thought in the first version  of the “Regolamento per i Servizi di Procuratore Sportivo” that stated that “Non-resident sports agents in Italy who intend to carry out their activities in favour of Italian clubs or registered footballers in Italy, must use an agent registered in the FIGC Register (…)”.[34]

The current regulations envisage that the exercise of the activity of Sports Agent by a non-EU citizen “must take place” by signing an “agreement” with an authorised Sporting Agent to carry out the activity in Italy within the framework of the F.I.G.C. with the object of the conclusion, termination or renewal of a sports performance contract professional, the conclusion of a contract for the transfer of a professional sports performance or membership with the F.I.G.C..Therefore, as far as non-EU agents are concerned, the FIGC Regulations allow them to operate within the federal framework only after an agreement has been reached with another Agent, licensed by the FIGC or otherwise authorized to operate in Italy the activity of Agent.[35]

The agreement, drawn up in 4 copies, “must contain the complete personal data of the parties, the subject matter of the mandate, the duration, any exclusivity clause, the consideration, the party liable to pay, the method of payment and the signature of the Contracting Parties (…)’ and be forwarded to the Federal Commission, in Italian, within twenty (20) days of its conclusion.”[36]

Special Obligations

The provisions of Articles 6, 7 and 8 of the FIGC Regulations concern specific provisions regarding rights and obligations, prohibitions and transparency of the parties concerned by the Regulation. It is specified that the player or club that intends to use the services of a sports agent, must apply only to those who are registered in the Federal Register or the Special Section, giving him the task in the manner and formalities provided by the FIGC Regulations.[37] The parties are obviously also required to respect the principle of good faith in the execution of the mandate.[38] Additionally, as provided for by both CONI and federal regulations, they must always ensure that the name of the Agent used appears on the sports performance contract, and it should be expressly mentioned in the sports performance contract the absence of a sports performance Agent.[39] Mandates signed in violation of the duties provided for in the new regulations are ineffective and constitute a disciplinary infringement, with consequent reporting and transmission of the acts to the Federal Prosecutor’s Office.[40]

It is important to emphasize that “it is forbidden for football clubs and their managers to receive sums or other compensation from sports agents for any reason”.[41] Furthermore, it is mentioned that “It is forbidden to offer, request or accept sums of money or other benefits for any reason recognized, in order to obtain the formalization of a mandate”.[42] Additionally, the violation of the prohibition entails the ineffectiveness of the mandate contract, with consequent activation of the disciplinary procedure.[43] By 31 March each year, the FIGC will publish the names of the Sport Agents who have performed services on behalf of Players or Clubs in the previous year and also publishes the aggregate data relating to the remuneration paid in the previous year to the Sport Agents and the persons who paid them.[44]

Dispute Resolution and Sanctions

Football Agents that do not comply with these Regulations shall be penalised. The type of sanction can vary from a fine of 5000 EUR to a ban of 24 months depending on how long and how severe the committed infraction is (expulsion of the Register is possible in case of multiple violations). The sanctions are enforced by the CFAS and intermediaries can appeal against these decisions to an Arbitration Committee created within the superior Italian sports body (Collegio di Garanzia del CONI). The mentioned Committee will also analyze any situation associated with the interpretation, execution and validity of all contracts signed by agents, as well as the economic issues related to contract between players and agents or agents and federations, associations or clubs.[47]

Concluding Remarks

Intermediation is an ever-growing phenomenon in professional sport and in football. According to research carried out by industry analysts, in 2017 alone, commissions paid to agents by Italian football clubs exceeded $340 million.[48] Perhaps FIFA is considering a new reform of the sector in order to produce a detailed regulation to ensure greater transparency of the role of the agent and the system of commissions received in the work of intermediation carried out for players and clubs.  A reform that could in theory not only threaten the agents, but the entire legislation on transfers of players, focusing on the control of financial flows as a central element of the new regulation. At the time of FIFA’s 2014 reform, many experts in the Committee also discussed the option of liberalisation and, alternatively, the appropriateness of formalising the status of a true member of the sporting system for Football Agents. As has often happened, the sporting regulatory uncertainty has given rise to an intervention of the ordinary legislator, an interference therefore perhaps not entirely unjustified.

Contrary to FIFA for now, the Italian State wants to regulate this activity, and it could be because Italy is the country where agents/intermediaries are used the most to buy players and remains in the top 3 to sell players, so a lot of money is generated through this activity.[54]However, the FIGC has realised that this new system  has flaws and has already made alterations to the first version of the Regulations in an attempt to simplify its application.[55] Considering that the matter is evidently under the attention not only of the competent sports bodies, but also of the ordinary legislator, perhaps a meeting between all the parties involved could be a possible solution, in order to identify any specific regulatory measures that can safeguard the rights and interests of all parties involved. Alternatively, instead of the previously mentioned multilateral approach, FIFA could reintroduce their own examination process, which could simplify and even eliminate many procedural issues faced by Football Agents, when they have the often dauting task of registering in a jurisdiction that is not their home jurisdiction, such as the language, the necessity for other documents that their home association does not require and a translation of the mentioned documents, and the payment of administrative fees on a yearly basis. 

Bearing in mind that with the current system where each national football association sets its own requirements for the practice of the Agent activity, and requirements differ from association to association, this involves the payment of several administrative fees, creates an undesired network of bureaucracy in a very time demanding field of work, especially in transfer windows, impairs the performance of the activity and can jeopardise deals. Since it is understandable that no jurisdiction wants to have a reputation for being extremely complicated, when it comes to performing transactions FIFA could intervene (as it has done in the past) to instate a uniform regime to be followed by all associations, which could lead to a globally unified regulation for Football Agents. The issue with such a step would be the fact, that it would mean that the attempted deregulation of the activity planned by FIFA in 2015 was a complete failure. In a way FIFA has already accepted this by announcing its plan to make several alterations to the current status quo similar to the system in place prior to 2015, where each association has its own requirements. With that in mind, perhaps there will be a case in the European Court of Justice related to the restriction of freedom of providing services (similar to the “Kolpak case”) within the EU. We will have to wait and see….

Miguel Rodrigues

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