By Dan Chapman
The Football Intermediary ; is there room for complacency?
In light of the recent abuse scandal it is only right that the FA have moved swiftly to commence an independent review. Whilst, of course, the horrific testimony we have been hearing from victims of abuse in the game dwarfs the concerns we have had about the other recent scandal in football – that of corruption in the game – the FA might do well to admit and reflect upon their recent failings in the regulation of an influential part of the sport, that of football agency.
For me, the issues are in many ways linked. Whether we are talking about coaches or agents (now technically known as ‘intermediaries’) the point ought to be the same: we should only want participants of the highest calibre and integrity in our sport. Not only that, but we should do all we can to ensure that the intentions of those seeking a career as a coach, manager or agent are to promote and protect the best interests of the sport and those that wish to play it, either professionally or on an amateur basis. Yes, aspiring participants enter their chosen career with a desire to make money – but that need not be incompatible with some purer motives. Doing a very good job as a coach, manager or agent will lead to financial recompense but there is no need to reward or encourage those who would prefer the recompense without the good and hard work. Worse still, make sure there is not even the remotest chance that those with criminal intentions get anywhere near the game or those within it.
In April 2015 FIFA chose to abolish their long-standing licensing and regulation of the football agency profession, leaving instead each national federation to introduce their own regulation. Whilst some very brief FIFA regulations remain, the essence was that each national federation had a fairly blank canvass from which they could work. The fundamental change, however, was that there would be no form of FIFA-led licensing, which had historically made entry to the agency profession quite difficult (the pass rate for the licensed agency exams ranged from just 6 to 35% in the five years before abolition).
The FA adopted the stance that, absent a mandatory licensing regime, they were powerless to do much about restricting who could become an ‘intermediary’ (the new term for an agent), and so they created a system whereby anyone who paid the fee (£500) and self-declared that they were of ‘good character and reputation’ could join the profession. I say self-declare for that is an important point:- there is little or no verification required of one’s credentials and I have often pondered how likely it is that a dishonest applicant low on good character and reputation will be minded to complete the declaration truthfully!
But there it is: pay your fee, and tick the boxes to say you do not have a ‘disqualifying condition’ and you are up and running. You don’t even need to take out liability insurance, let alone pass any form of exam (or even basic competency test). You don’t need to know anything about football, as it happens. Readers will no doubt assume that, at the very least, those with a criminal record won’t be allowed near the careers of young, aspiring footballer? Not quite. An applying intermediary has to choose whether he or she wishes to receive clearance to act for minors (those under 18) and if/she does then they do need to supply an enhanced criminal record check. But for those who are content to advise only players aged 18 or above (or content to advise unlawfully…) no criminal record check is required or carried out. Instead, there is another self-declaration that one has no unspent convictions for a violent, financial or dishonest crime. Spent convictions for violence or dishonesty are perfectly acceptable as are unspent convictions for crimes that did not involve violence, finance or dishonesty. Such crimes given ‘immunity’ could potentially include pornography offences, drug offences, racially aggravated public order offences, drink driving, offences of neglect and health and safety offences.
The net result is that there are now FA Registered Intermediaries trading who have served prison terms and there may well be those with spent criminal convictions of any type, or unspent convictions that do not relate to violence or financial crime but are still objectively convictions that we ought not to want from those participating in the game.
Now, surely if the English system displays such latitude to those that wish to become intermediaries that must be the case in other jurisdictions? This is all the fault of FIFA, is it not, and our system is no better or worse than any other? I am afraid not.
By way of contrast one could look at the Portuguese equivalent of the FA who have gone so much further. To become an intermediary in Portugal one has to provide a copy insurance policy with a minimum of 50,000 Euros cover, ID card and passport, a full criminal record check, evidence of solvency and that one has no unpaid taxes. More importantly, however, an “Intermediaries Commission” sit to review the application of each potential intermediary and if any doubts arise as to whether he/she has an “impeccable reputation” they are either declined entrance or called to a hearing. The Commission look not only at criminal and financial history, but also look for any evidence of dishonesty in football, xenophobia, homophobia, violence, racism, match-fixing and so on. The Commission is made up of a mix of officials from the Portuguese governing body and from their Agents’ Union and also Players Union, ensuring the interests of the entire game are reflected and that ‘intelligence’ from the footballing community is applied to the review of the application.
In Spain, the system is arguably even more robust. To become an intermediary one has to provide a written request to the Spanish RFEF (their FA) and then attend an interview at which it is determined whether you have suitable character, knowledge and ability to be able to “advise clients on the football market“. Only if you pass that interview do you proceed to the next stage where your identity, history and probity are reviewed – requiring the application to supply copies of their ID, tax records, full employment CV and the like.
Readers may consider it a surprising anomaly that the Portuguese and Spanish systems are more onerous than ours. However, a review of other jurisdictions proves not. In the UAE, for example, applicants are required to prove that they have at least 5 years of relevant experience in football before they can become an intermediary. In France, Czech Republic and Denmark, so frightened were their governing bodies by the suggestion of removing the agency exam partly set by FIFA, they introduced their own examination system. In Argentina, like Spain, an interview is required and in Mexico both an exam and an interview takes place.
In the UK, particularly if you do not request minor approval, you can in theory be a convicted criminal who does not pay tax, possibly with a history of dishonesty and disrepute in football and/or who knows absolutely nothing of use that equips to advise footballers on their careers – and you can become a FA Registered Intermediary. In most other jurisdictions, this could not be so.
Does any of this really matter, though? I believe, for many reasons, it does. We have intermediaries in England who are advising players badly (at best) and dishonestly. We have careers that could be derailed by the short-term greed of intermediaries and we are seeing intermediaries who – so unfamiliar are they with any form of scrutiny or regulation – have no issue with inducing or advising their players to breach their contracts or to ‘go on strike’ or to issue ill-considered statements on social media. I have seen intermediaries advising a player on contracts they have not even read and intermediaries ‘secure’ a player a wage 50% less than the one which is on offer, in return for a bigger fee for themselves. We have taxes being lost, foreign agents registering as an intermediary as it is now a jurisdiction of choice and the potential for intermediaries who would struggle to gain employment in the most basic of professions due to their past convictions or misdemeanors being granted unfettered access to training grounds and young men aspiring for a career as a footballer.
But, heaven forbid, there is an even worse doomsday scenario. The FA Chairman Greg Clarke tells us in his response to the abuse revelations that the FA’s priority is to ensure that there is not a “new generation of victims” and that “no stones are unturned”. He assures us that “we cannot and will not be complacent”. If that is so, Mr Clarke, please stop granting official “FA Registered” status to pretty much anyone who asks for it. If there is a 0.001% risk that your policy (one which almost every single member of the profession advised the FA in 2015 was truly absurd for countless reasons) might lead to another victim, don’t take that risk. And in so doing, you will solve hundreds of other ills which are being caused by the lax ‘regulation’ of the UK intermediary market too.
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The spearhead and Senior Partner of Full Contact, Dan is an experienced solicitor and advocate, with a specialist background in employment law and sports.
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