Transparency in Transfers
Bujalski, Angus, The International Sports Law Journal
Transparency was the watchword for football regulators towards the end of 2009, and this looks set to continue into 2010. It is under this banner that FIFA seems prepared to recast its role as regulator of the use of third parties in international player transfers. In March 2010, FIFA will complete the roll-out of its Transfer Matching System (TMS) and at the same time, seems set to rethink the way it regulates dealings with agents. Rather than regulating the agents themselves, FIFA proposes to concentrate on regulating the players and clubs in their dealings with third parties, meaning that the obligations sit with, and the sanctions bite on, only the players and clubs rather than on any third parties.
The issue of transparency is rarely out of the news, from the Financial Action Task Force's report on "Money Laundering through the Football Sector" in July 2009 to more recent developments regarding payments to agents. Although it is the implementation rather than the announcement which is news, the English FA now requires Premier League clubs to publish annually the amounts paid to agents in the preceding 12 months. The first set of figures for the 12 months to 30 September 2009 were widely publicised and analysed. Further, two recent cases in England, namely Kevin Keegan's case for constructive dismissal before the League Managers' Arbitration Tribunal, and Hull City's action against former chairman Paul Duffen, have brought to the fore the less savoury side of payments by clubs to intermediaries.
Transfer Matching System
The idea behind the TMS is, in the words of Marco Villager, FIFA's director of legal affairs, "centrally [to] control all international player transfers by recording all relevant data". This data, including the money spent and received, commissions paid and the bank accounts used, is recorded by the clubs involved on a centralised web-based tool. This aims to make international transfers more transparent so that all payments can be matched up and ensure fraudulent payments cannot be hidden. It is intended, perhaps as early as 2012/13, that the TMS will also operate as a clearing house through which all payments will be made, allowing for more centralised supervision of all payments. A similar system currently operates in England, where all monies paid by English clubs to overseas clubs, and all monies paid to agents, are paid through the FA's designated bank account. FIFA has stated very clearly that the TMS is designed to prevent abuses, such as agents representing minors, the use of unlicensed agents, or money laundering in football.
As part of this roll-out, FIFA has introduced the electronic international transfer certificate (ITC). This is designed to speed up the international transfer process. Historically, ITCs were issued by fax between the member associations of the clubs involved, which left FIFA inundated with paperwork as it manually registers every transfer. From 5 October 2009, if both associations involved in the international transfer are already participating in the TMS, an electronic ITC will be used, and paper certificates will no longer be accepted.
Currently 108 associations (including all 53 associations within UEFA) and 1,263 clubs are participating, with global roll-out planned for March 2010. In a circular of 23 September 2009 to its members, however, FIFA stated that compliance with the TMS was "rather disappointing" and reminded its members that it would refer cases of non-compliance to the FIFA Disciplinary Committee. Villager is quoted as saying that "sanctions must be harsh", and that FIFA would provide state authorities and even Interpol with all relevant information should they have any suspicions about any transfers or payments.
FIFA as Regulator of Agents
It has been reported recently in UK newspapers that FIFA intends to end its role as worldwide regulator of football agents. This has been described as "turning the global transfer market into a free-for-all", or even worse as a move taking football "back to the wild west". …