Will The FA have problems enforcing the Intermediaries Regulations?

Published 06 August 2015 By: Thomas Barnard

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The introduction of The FA’s “Regulations on Working with Intermediaries1 (the “Regulations”) in April 2015 has caused much to be written on the topics of how the Regulations will change the pre-existing landscape for agents;2 how the Regulations will work in practice;3 and whether there is ground to challenge the legality of the Regulations.4

However, there is little in the way of commentary as to the way in which The FA will enforce breaches of the Regulations. There are two particular issues here:

  1. How will the FA deal with disputes between Intermediaries and Players where the Intermediary and Player are each registered with different federations?
  2. How will the FA sanction those acting as Intermediaries where the “intermediaryis not formally regulated by the FA (ie. because they have refused to submit to the FA’s jurisdiction, instead seeking to work as de facto intermediaries in disregard of the Regulations)?

In the author’s view, the first question is one of jurisdiction, the answer being determined by asking which of the two (or more) federations, properly determined, has jurisdiction to hear the dispute.5

It is the second question that may require more thought in practice, and is that is subject of this article.

 

What is the problem?

The Regulations (and the common law principle of privity of contract) provide that the Regulations will only be enforceable by The FA against those that have submitted to The FA’s Rules by registering in accordance with Appendix II or III to the Regulations: if an agent has not submitted to The FA’s jurisdiction by registering as an Intermediary, then there is no contractual basis on which to submit the “intermediary” to The FA’s disciplinary processes.6

Why does the problem arise?

Pursuant to the Regulations, an Intermediary is defined as:

any natural or legal person who carries out or seeks to carry out Intermediary Activity and has registered with The Association in accordance with Appendix II and/or III

Intermediary Activity” is defined broadly under the Regulations to mean (relevantly):

acting in any way and at any time, either directly or indirectly, for or on behalf of a Player or Club in relation to any matter relating to a Transaction.

Likewise, “Transaction” is defined broadly under the Regulations so as to include almost all activity related to a player’s contract of employment with a club.

The above definitions give the Regulations an extremely broad application such that it is entirely conceivable (indeed almost certain) that players’ commercial agents will cross the line and carry out activity for which they should, if acting properly, be registered with The FA.

Similarly, and of perhaps more concern to The FA, is the issue of those individuals that have not registered with The FA, yet carry out “Intermediary Activity” in blatant disregard of the Regulations.

 

What’s The FA’s likely solution?

Regulation A1 puts the onus on Players and Clubs to ensure that they only engage registered Intermediaries in relation to Intermediary Activity. As a safeguard then, Players and Clubs will be well advised to check, when engaging agents to carry out Intermediary Activity on their behalf, that the Intermediary is properly accredited by The FA. A failure to do so could result in the Player or Club being sanctioned if the agent turns out not to be an Intermediary. Additionally, players and clubs need to ensure that their commercial agents do not inadvertently get involved in Intermediary Activity.

This seems somewhat unfair, however, and is possibly not workable in practice. Will players really check that their agent is an Intermediary? Some will, of course, but the author suspects that many will not.

The agent in the above scenario (i.e. the unregistered “intermediary”) could possibly go unpunished. This also seems somewhat unjust. Although the Player or Club could have a tortious claim against the agent (for inducing a breach of contract, for example) or a contractual claim (misrepresentation, for example, where the agent held himself out as an Intermediary) litigation is time and cost intensive. This is not the situation that the Player, Club or The FA will want to find themselves in.

From the FA’s perspective, the best it is likely do is “blacklist” the agent and prevent them from registering as an Intermediary in the future. It needs to be asked whether such sanction will be sufficient to act as a deterrent.

At the time of writing there are not any reported instances of The FA sanctioning Clubs or Players for breaches of the Regulations. Perhaps as we pass through further transfer windows under the new Regulations we will see disciplinary action being taken, or an alternative approach from The FA. One solution would be for The FA to make registration as an Intermediary as straightforward as possible (thus encouraging agents to submit to The FA’s jurisdiction and in doing so making them amenable to enforcement).7 However, it seems at this time that the Regulations – designed to bring order to the agency model – lack one central factor: the ability to sanction the wrongdoer.

 

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Author

Thomas Barnard

Thomas Barnard

Tom is a solicitor specialising in commercial litigation and sports law. He acts for a wide variety of high-profile athletes, including cricketers, footballers, gymnasts and cyclists.

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