The Fiduciary Duty of Football Intermediaries and the Conflict it Creates
Such stories tend to focus on the ability of such professionals to make a quick profit for little work involved. Indeed, I suggested in a previous post https://www.linkedin.com/pulse/20141113135420-55498583-football-agents-tapping-up-business-as-usual/ that football and its commodification and enormous commercial value have created the basis upon which quick deals could be established and millions of pounds could be exchanged between parties. I also argued, in such post, that the purposeful and efficient application of the regulatory framework could ensure the elimination of illegal and immoral activities such as 'tapping up.'
Although an appropriately drafted and executed regulatory framework may, in theory, regulate tapping up activities, what it cannot do is dictate the behaviour of football intermediaries and their negotiation techniques and strategies when they deal with employers of their clients. It is true that football intermediaries have a duty towards their clients to ensure that trust and confidence prevail at all times. The principal-agent relationship is distinct from the traditional employer-employee relationship due to the fiduciary nature of the former. Indeed, a fiduciary duty in English law has been defined as a relationship in which one party places special trust, confidence and reliance in and is influenced by another who has a fiduciary duty to act for the benefit of the party.
Such duty, in my view, is absolute, save where the law dictates otherwise. In the majority of such relationships, intermediaries do promote and safeguard the interests of their clients. Some use legal and ethical means to do so and some others do not. In the latter scenario, intermediaries may heavily influence their clients in their relationship with a particular employer (football club). It is often the case that players place enormous reliance on their intermediaries and they are influenced to such extent, where their decision making affects their relationship with their employer and, such relationship, becomes problematic and strained. A prudent and experienced intermediary will never create a situation where his client finds himself at loggerheads with his employer. Especially when such intermediary has acted for the club in other transactions or has several other clients with the same club. A strained relationship between the club and one of his clients, may create problems for his other clients too and because of the dynamics of this small and competitive market, there is only one party who is going to lose out in the end: the intermediary.
In all the years that I have acted for my clients, (whether football, basketball or track and field clients), I have always made sure that any problems between my clients and their employers remained confidential and all pertinent matters to such problems were dealt with appropriately and with the utmost secrecy in an internal setting. I have never influenced my clients to strain their relationship with their employers and I have never encouraged them to act unprofessionally in their trade and/or in such relationships. I am privileged to have worked with some high profile athletes and proud to be in a position to say that such individuals have rewarded me with their trust and stayed with me for years, not only as clients, but, more importantly, as friends. To this extent, I am still in a position to say that I have a good professional relationship with all such clubs I have negotiated with over the years.
In the premises, people must understand that the 'grapevine' in this market is far too effective and certain individuals cannot apply 'sharp practice.' Regrettably, such individuals fail to understand this important premise and because they think they are untouchable or have 'power', they also feel they can dictate specific decision making to clubs and their officers. They also feel they are in a position to 'threaten' such officers, in an attempt to influence their decision making and gain the utmost benefits for their clients. I, personally, was unfortunate to come across such specific individuals, either because they tried to approach my clients without my express permission, or because I was instructed, as a lawyer, to act against them. So low is the mentality and behaviour of such individuals that if someone spat at them they would probably think it rained. Regrettably, such individuals are still around to operate, either because the regulatory framework has not been applied and executed against them, or because certain clubs tend to ignore the unscrupulous behaviour of such individuals.
In conclusion, I am of the view that unscrupulous intermediaries have no place in the sport of football and they must be eliminated. The current regulatory framework must be applied in a prudent and purposeful manner and all stakeholders involved must condemn unethical, immoral and illegal behaviour from such individuals. More importantly, the different regulators in football must ensure they deal with complaints effectively and efficiently by applying the appropriate sanctions against such individuals. As prevention is always better than cure, it is submitted that intermediaries must be qualified and their regulation must, to a certain extent, be left to the relevant State authorities. It is only when tough and fair sanctions could apply against such individuals, the problem of unscrupulous agents may be eliminated for ever.
Dr Gregory Ioannidis*
2 March 2018
*Dr Gregory Ioannidis is a sports lawyer and an anti-doping litigation expert. He is a former The FA registered lawyer and has acted for and represented many players and clubs around Europe, Africa and Asia. He is currently the Course Leader of the Master's Programme LLM International Sports Law in Practice at Sheffield Hallam University and an academic associate at Kings Chambers in Manchester.