FIFA Players' Agents Regulations and the Relating Jurisprudence of FIFA and CAS
Gradev, Georgi, The International Sports Law Journal
The author herewith pays special attention only to a few key points of the edition 2008 of FIFA Players' Agents Regulations (PAR) (1) in force (since 1 January 2008), which are conducive to confusions or conflicts among the football stakeholders, and to the relating important past decisions rendered by FIFA and the Court of Arbitration for Sport (CAS).
The "natural person" requirement
Agents' activity may only be carried out by natural persons who are licensed by the relevant FA for this purpose. An agent may organize his occupation as a business as long as his employees' work is restricted to administrative duties connected with the business activity of an agent. The following examples of FIFA and CAS jurisprudence clarify the situation, as it appears to be some general confusion as to how agents should utilize such companies:
Patrizia Pighini vs. Atletico de Madrid
In a case of 2006 opposing the licensed agent, Mrs. Pighini, acting for Image Promotion Company of Monaco, to Club Atletico de Madrid, FIFA, applying the edition 2001 of PAR, decided that the claim filed by the Agent would be partly accepted and ordered the Club to pay the Agent a certain amount of money.
The Agent appealed against the FIFA Decision before CAS. (2) CAS decided that the Agent is not a party to the Contract at stake and therefore, not entitled to submit a claim - the only party entitled to a claim is the Company. The Panel was of the opinion that a company is, in principle, entitled to file and pursue a claim at FIFA and that the 2001 PAR provisions do not preclude such claim being filed. CAS held that the lex specialis rule stipulated in 2001 PAR, pertaining to the right of an agent to organize his/her occupation as a business, overrides the lex generalis provisions contained in 2001 PAR (3), as well as that article 22 of 2001 PAR (particularly par. 2 which governs international disputes) does not provide that legal entities cannot claim before FIFA. CAS finally ruled that in the particular case FIFA lacked jurisdiction to entertain the matter and dismissed the appeal.
Pinhas Zahavi vs. Besiktas
In an arbitration of 2007, conducted by FIFA pursuant to the edition 2001 of PAR, between Club Besiktas and the renowned licensed agent, Mr. Zahavi, acting for GOL INTERNATIONAL LTD., FIFA adjudicated that it has no jurisdiction and rendered the Agent's claim for commission payment inadmissible. FIFA first pointed out that it has jurisdiction only on those individuals who carry a valid agent's license issued by the relevant FA. FIFA recalled, among others, that an agent license is issued to natural persons only - applications from companies are not permitted, and that this fact constitutes one of the crucial principles of PAR and is based on the general approach that, in the relationship between an agent and his client, the personal element is of outstanding importance. FIFA concluded that the Agent is "not legitimated to sue as the proper party", since the Agreement was apparently concluded between the Club and the Company. For the sake of good order, FIFA referred to article 6 par. 1 FIFA Procedural Rules in order to remind that only members of FIFA, clubs, players, coaches or licensed match and players' agents are admitted as parties before the relevant decision-making bodies of FIFA.
On 5 December 2008, the Agent and the Company filed jointly a Statement of Appeal at CAS. (4) The Panel first decided that the edition 2001 of PAR is applicable to the appeal of the Agent, whilst the edition 2008 of PAR is applicable to the claim of the Company. (5) CAS then noted that none of the Appellants has ever tried to suggest that the Agreement implemented a partnership agreement or an active solidarity between the Agent and the Company, creating a co-ownership of the whole claim and enabling each of them to demand from the Club the payment in dispute. CAS pointed out that in any event the claim of the Company is prescribed. …