The International Supply Of Sports Agent Services

Abstract

1. Introduction For a long time, the profession of sports agent has not specifically been regulated. Only recently were particular rules concerning the access to the profession and the exercise of this activity enacted, both at the State level and at the level of sports' federations. Such rules were enacted in reaction to a certain drift of the profession, which resulted, these last years, in the perpetration of embezzlements and frauds in France and abroad. Among the numerous scandals, the one that affected the basketball player Kareem Adbul-Jabbar, the player who scored the biggest number of points in the history of the NBA, is the most famous. (1) In this case, not only had the agent violated his obligation of loyalty towards the player, but he had also commingled his personal funds with those of his client, made investments contrary to his client's instructions and even secured his personal debts with his client's funds. (2) The suspicion towards this profession largely resulted in discrediting it. In the United States, the suspicion is such that lawyers, who are subject to stricter rules of professional conduct, are substituting to sports agents in exercising the activity of intermediation between sportsmen, clubs and sponsors. (3) In most European countries such an evolution may not possibly occur, since lawyers' rules of conduct prevent them from exercising intermediation activities of that kind. Such prohibition may be either direct, as in French law, (4) or indirect as a result of the prohibition of contingency fees. The distrust towards the profession of sports agent also contributed to the development of specific rules governing sports agents. Such rules have a unique typology and are often much more demanding than those imposed on their counterparts in the artistic and literary fields. While some of the new rules emanate from state authorities, sport however remains an activity widely controlled and organized by sports federations. It is therefore not surprising to note that a large number of requirements applying to sports agents derives from the lex sportiva of national and international federations. Besides, regulatory efforts were initiated by associations of professional sportsmen having more or less of authority. The four main sportsmen's associations in the United States--which benefit from the status of trade unions--oblige their members to appoint only licensed agents. (5) Finally, efforts of self-regulation also appeared within the profession. Notably, the Association of Representative of Professional Athletes, adopted a Code of professional conduct, although the latter has no binding value since the membership to the association is voluntary and since the Association does not have the powers to enforce the principles it adopted. (6) A specific frame of the activity of sports agent was first established in the United States, with the adoption in 1981 of the Athlete Agents Act by the State of California. (7) In my knowledge, the first European legislation in that field is the French law no. 92-652 of July 13, 1992, which modified the law no. 84-610 of July 16, 1984 governing the organization and the promotion of physical and sports activities. Until 1992, the activity of sports agent was forbidden in France. Although such activity was employed in practice, notably in the field of professional football, courts that were referred disputes between agents and their principals ruled for the nullity of sports agent contract on the ground that the rules of the French Labour Code on labour procurement prohibit the exercise of any intermediary's activity between two persons called to be bound by an employment contract. (8) The activity of sports agent was authorized and regulated in France by the law no. 92-652 of July 13, 1992. (9) With this law, French law, contrary to most foreign legal systems and international federations regulations, introduced a restrictive regulation of the activity. …