Protecting your rights and interests in the foreign jurisdiction player brokerage market

Posted by Brabners

Fri 05th, Jan

The January transfer windows often see the market-place saturated with documentation (purporting to be sub-contracted mandated authorisation documents) linked to the marketing of foreign based players (the “Player”). As the Player, the contracted foreign agent (the “Foreign Agent”), the selling club (and possibly the third party economic rights holders) are based overseas, the draw of the English leagues presents opportunities for Intermediaries registered and governed by The FA (the “Intermediary”) to accept sub-contracted work (relating to the services defined in the representation contract between the Player and the Foreign Agent) to help the Player procure a transfer to a club in England. Often the Foreign Agent will not be registered with The FA therefore an Intermediary can provide an efficient solution to the Foreign Agent’s inability to conclude a transaction for the Player in England.

Whilst the opportunities appear to be plenty, and the scope to generate intermediary commissions / fees efficiently (for example by not having to invest time, effort and cost in developing a relationship with an English based player), there are a number of problems with this type of transaction. Some of the problems are linked to the following (which is not an exhaustive list):

  • a lack of understanding of the intermediaries regulations in the respective countries;
  • a lack of understanding of the process and checks implemented by The Home Office and The FA for granting a Governing Body Endorsement’ for issuing a work permit;
  • a lack of understanding of the registration rules and regulations of the relevant League and The FA;
  • a lack of understanding of the contractual scope and wider legal implications of the documentation which purports to be ‘sub-contracted mandated authorisation’ documents;
  • pressure to generate intermediary commissions / fees in a very time and opportunity limited market-place;
  • a desire on the parts of the Player and the Foreign Agent to retain as much control as possible (often granting non-exclusive authorisation to market the foreign player in England and / or to specific clubs);
  • a desire on the parts of the Player and the Foreign Agent to create as much opportunity for a move as possible (often granting duplicated (and allegedly ‘exclusive’) authorisations to numerous Intermediaries; and
  • far too many third parties involved in the transaction chain between the Player (the Foreign Agent) and the Intermediary.

If you are an Intermediary registered with The FA and have relationships with foreign based players and agents then the below checklist might assist you in assessing the merits of a prospective transaction and the risk involved with the contractual terms proposed by the foreign based player and agent.

These issues should be clarified between the parties and all supporting documentation obtained prior to committing to engage in any Intermediary Activity in England. The below represents an ‘ideal’ scenario but, in reality, the market-place will not allow all of the issues below to be dealt with as comprehensively as the Intermediary would like.

1.     Obtain a copy (preferably certified) of the Player’s passport. This will allow the Intermediary to be confident in his / her knowledge of the Player’s:

i)              Full name;

ii)             Date of birth;

iii)            Place of birth; and

iv)            Nationality (and if the Player has dual nationality).

2.     If the Player is an EU / EEA national then currently (awaiting any post Brexit rule changes) the Intermediary can proceed to the negotiation of the sub-contract terms.

3.     If the Player is a non EU / EEA national then further information must be obtained to assess the eligibility of the Player for a work permit:

i)              What is the current FIFA ranking of the Player’s national team?

ii)             How many competitive matches have been played by that national team in the last 24 months (12 months if the Player is 21 or under)?

iii)            What percentage of those games, in which the Player was available, has the Player played in (subject to FIFA ranking of the national team, the player must have played in between 45% - 75% depending on ranking)?

iv)            Can the above be confirmed by the national association of the Player (if not then attempt to obtain independent confirmation) and can supporting evidence be obtained?

v)             Does the prospective buying club have a current sponsorship certificate licence?

vi)            What is the proposed selling fee (full details of guaranteed and contingent payments)?

vii)           What are the Player’s salary and benefit package demands (net of tax)?

4.     Obtain a copy of the Player and Foreign Agent representation contract.

5.     Identify any third party rights in the player (full details and supporting documentation to be provided). Such rights must be extinguished prior to or as part of the transfer transaction.

6.     Identify any third party rights owner’s willingness to sell its rights and the desired transfer fee (full details and supporting documentation provided).

7.     Attempt to contract in writing with the Player and the Foreign Agent to deal with the following issues (in as clear terms as possible):

i)              The extent of the authorisation – exclusive or non-exclusive authorisation (ideally the Intermediary will want exclusive authorisation to market the Player within the jurisdiction of England, to all clubs, and for the duration of the transfer window);

ii)             A future obligation on the Player and the Foreign Agent to formally sub-contract all intermediary services in England to the Intermediary (or for the Player to formally enter into a representation contract with the Intermediary in England);

iii)            Identify clearly the desired intermediary commission / fees value and split apportionments between the Foreign Agent and the Intermediary;

iv)            Identify clearly all payment terms agreed between the parties; and

v)             Identify any and all terms relating to the post transfer representation of the Player and the future relationship between the Foreign Agent and the Intermediary.

8.     If the Intermediary is lucky enough to address all of the above issues, and broker a transfer of a foreign Player to an English club then the Intermediary must record the terms of his / her representation engagement with the Player and / or the English club and lodge it with The FA prior to engaging in Intermediary Activity. The Player and / or club and the Intermediary must also complete all the relevant declarations and documents required by The FA Regulations on Working with Intermediaries) prior to receiving payment.

Should you require any support with any of the issues discussed above then please do not hesitate to contact a member of the Brabners Sports Sector Team.

Good luck! 

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