By Dan Chapman
The news that Pere Guardiola (brother of Manchester City manager Pep) has acquired a significant stake in Spanish club Girona has caused controversy because of the strong links to Manchester City and the objections (legal or otherwise) that many have to the concept of dual ownership.
However, this article considers a separate point: under English law, can a football agent own or have an interest in a football club?
The relevant provision is Regulation E4 of the FA Regulations on Working With Intermediaries (2016-2017) which states that:
“An Intermediary, any individual or legal person with an interest in an Intermediary’s
Organisation or an Intermediary’s Organisation shall not have an interest in a Club. Similarly, a Player, Club, Club Official, Manager or any individual or entity with an interest in a Club shall not have any interest in the business or affairs of an Intermediary or an Intermediary’s Organisation.
Such interest shall be defined as:
(a) beneficial ownership of more than 5% of any entity, firm or company through
which the activities of the Club or Intermediary (as applicable) are conducted and/
or b) being in a position or having any association that may enable the exercise of a
material, financial, commercial, administrative, managerial or any other influence
over the affairs of the Club or Intermediary (as applicable) whether directly or
indirectly and whether formally or informally.
An interest for the purposes of clauses (a) and (b) above includes an interest of:
(i) a spouse, child, stepchild, parent or sibling of the Intermediary, Player,
Club Official or Manager (as applicable); and/or
(ii) a company in which any legal or beneficial interest or any proportion or
share is held by the Intermediary, Player, Club Official or Manager or any
spouse, child, stepchild, parent or sibling of the Intermediary, Player, Club
Official or Manager (as applicable) (save for a holding of less than 5% );
(iii) a company over whose affairs financial, commercial, administrative,
managerial or any other control or influence can be exercised by
the individual or any spouse, child, stepchild, parent or sibling of the
Intermediary, Player, Club Official oamor Manager (as applicable).”
In simple parlance, this rule states that a FA Registered Intermediary (a football agent) must now own (or have beneficial interest in) more than 5% of a club, or have (irrespective of ownership) a position or association which provides him or her with influence over the affairs of the club. But does this prohibition apply to a foreign club?
Crucially, therefore, one has to look at the definition of a “Club”. The Regulations say that a “Club” is as defined within the Rules of the Association but deemed to be a ‘club for the purposes of these Regulations‘ . The Regulations go on to define a “club” as not just a club within England – it is defined as a “football club that plays the game of football in any country in a competition sanctioned and recognised..” This is a confusing double-definition and not helpfully drafted ; one could try and argue that a Club is only one that competes within the Rules of the Association but I do not consider that to be a proper interpretation of the Regulations as drafted. In any event, the Rules of the Association only define a “Club” as “any football club” so the clearest indication is that it must mean a club in any country.
So, what does this mean for Mr Pere Guardiola?
As at 21st August 2017, when the FA published its most recent list of FA Registered Intermediaries, Pere Guardiola was shown as being intermediary number 001350. That would place him in clear breach of rule E4 as, on his own case, his company (the Girona Football Group) has acquired a 44.3 per cent shareholding. In addition, it seems impossible to contend that he will not influence over Girona.
Now, of course, it could be that Guardiola has decided to cease his activities as an intermediary and has informed the FA accordingly – and until their next list is published we can not be sure of that.
If that be so, some rather good players might be seeking a new agent – the likes of Luis Suarez amongst them. William Carvalho is listed on Pere Guardiola’s website as one of his clients, which is particularly interesting as he is hotly tipped to join West Ham before this summer transfer window is out…….
Or it could be that Pere Guardiola takes the view that the FA can only take umbrage if he were to have an interest in an English club (I do not believe the Regulations are drafted that way, so reliance on such an argument is a highly risky position indeed).
This note does not consider what the position is under Spanish law, where it is understood that Pere Guardiola is also registered as an intermediary (or is, via his company Media Base Sports).
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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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