Sports agent or sports attorney lawyer? Two activities to differentiate ...Indeed, the very essence of the activity of sports agent is to "put in touch" the interested parties (player, trainer, club, sports organizations) to the conclusion of a contract relating to the paid exercise of a sports activity. That of the lawyer is to defend the interests of his client. As a sports representative by definition, he assists, represents and negotiates on behalf of one of the interested parties in the conclusion of such a contract.
The sports agent - Definition
French law defines the activity of sports agent as follows:
As for the International Sporting Regulations, the FIFA (Fédération Internationale de Football Association) qualifies as a player's agent the "natural person whose activity consists, in accordance with the following provisions, in bringing together for remuneration, a player and a club with a view to the conclusion or renewal of an employment contract or two clubs with a view to the conclusion of a transfer contract"
(Fifa Players' Agents Regulations, 2008 version)
For FIBA (International Basketball Federation), a player agent is "a person whose (remunerated) procedures allow or contribute to an international transfer of players or coaches"
(Fiba Internal Regulations, Book 1, General Provisions)
In other words ... will be qualified as a sports agent whoever carries out the activity, which consists of bringing together, for remuneration, several parties (player, trainer, clubs, sports organizations) with a view to 'paid exercise by an athlete or a sports activity trainer.
To exercise this activity, even occasionally, the agent must imperatively hold a sports agent's license issued by the Federation of the discipline concerned.
And the lawyer
In fact, it is generally accepted that a lawyer, within the framework of the exercise of his profession, is authorized to represent and negotiate in the name and on behalf of his sports clients, and this without being required to have 'a sports agent license.
Thus, Fifa expressly states: "a lawyer legally authorized to practice in accordance with the rules in force in his country of residence may represent a player or a club when negotiating a transfer or an employment contract." (art. 4 of the Fifa Sports Agents Regulations, version 2008).
However, is the profession of lawyer compatible with the exercise of the activity of sports agent?
In 2009, the Bar of the Paris Bar (not so for the Parisian lawyers) adopted the following provision:
Created by decision of the Bar Council dated March 17, 2009 (Bull Barreau de Paris, March 20, 2009, n ° 10); Modified by decision of the Council of July 6, 2009 (Bull. Paris Bar, July 17, 2009, n ° 25)
Getting A Day May 29 2012
According to Bulletin of the Paris Bar of May 29, 2012, it is indicated that the Council of the Order voted the modification of article P. 6.2.0.3.
The term "sports agent"has thus been replaced by"sports attorney lawyer", in accordance with the Law of March 28, 2011.
Then, in terms of article 4 of the Law n ° 2011-331 of March 28, 2011, the legislator adopted the following provisions:
"Failure by a lawyer exercising the activity mentioned in the first paragraph of the obligations resulting for him from the last paragraph of articles 10 and 66-5 of this law as well as from the second paragraph of article L. 222-5 of the code of sport is liable to the penalties provided for in the first paragraph of article L. 222-20 of the same code. The amount of the fine may be increased beyond 30 € up to double the sums unduly received in violation of the last paragraph of article 000 of this law.
“Violations of the remuneration rules mentioned in the first paragraph of Article L. 222-5 of the Sports Code are punishable by a fine of € 7. ";
II. - After article L. 222-19 of the sports code, an article L. 222-19-1 thus worded:
The Sports Representative Lawyer - Definition
During the debates (session of December 8, 2010) before the Senate of article 4 of the Law of March 28, 2011, Mr. Laurent Béteille, Rapporteur, said:
"(...) The initial text of the proposed law governing the profession of sports agent made the activities of lawyer and sports agent incompatible. Finally, this incompatibility was lifted in the final text. Therefore, it was necessary to specify the conditions under which lawyers could intervene in the conclusion of contracts relating to the paid exercise of a sporting or training activity.
The chosen device allows a lawyer to act as an agent of the athlete, the coach or the club, without having to obtain a sports agent license. Indeed, one can consider that the lawyer has sufficient qualifications to exercise such an activity, without having to obtain a license, which would add nothing. (...) "
"(...) The exercise of this activity by lawyers assumes that it is done as an agent and not as a sports agent.. Indeed, the status of sports agent, in particular the obligation to have a license and to be subject to the discipline of sports federations, is contrary to the essential princes of the legal profession. (...) The text, as it emerges from the work of the commission, results in a balanced system, which leaves athletes the possibility of choosing between the attorney lawyer and the sports agent. (...) ".
What are the Differences between the Sports Agent and the Sports Representative Lawyer?
The ministerial response of February 1, 2011
To a question asked by Mrs. Maryse Joissains-Masini, Member of the Bouches du Rhônes, the Keeper of the Seals, Minister of Justice and Freedoms, specified according to the ministerial response published in the Official Journal of February 1, 2011:
"Article 1 bis of the bill for the modernization of the judicial or legal professions and of certain regulated professions, the object of which is to allow lawyers to exercise, in this capacity, activities similar to those reserved for sports agents, was introduced by the Laws Committee of the National Assembly and was adopted by the deputies at first reading on June 30, 2010 and by the Senate on December 8, 2010. The details which appear in this text are necessary. Indeed, on the one hand, if it falls within the remit of a lawyer, to represent, within the framework of a mandate, the interests of an athlete or a club, the activity consisting in report the interested parties to the conclusion of a contract relating to the exercise of a sports activity, which characterizes the activity of sports agent, constitutes, on the other hand, a brokerage activity, by commercial nature and, therefore, , forbidden to lawyers. On the other hand, these provisions go in the direction of the moralization of the sports environment, objective which guided the work of the Parliament during the examination of the proposed law governing the profession of sports agent. Thus, it is in order to better regulate the conditions under which contracts relating to the paid exercise of a sports activity are concluded that the choice was made to subject lawyers to the same obligations as those imposed on sports agents. , with the exception of holding a license. The device, as adopted by the Senate, is perfectly balanced in that it preserves the principles which attach to the legal profession while guaranteeing the moralization of sport by submitting lawyers to the limitation of their remuneration. 10% of the amount of the contract concluded with the club and the obligation to transmit all contracts to the sports federations. If the federation detects an abuse, it will inform the president of the bar who will initiate disciplinary proceedings if necessary. "
The lawyer does not canvass
As for the brokerage operation, this "(...) part of a brokerage contract with an ordering party and a broker as partners, a contract to which is added a broker-third party relationship, the whole having to allow the realization of the brokerage contract, namely the conclusion of a contract between the principal and his third party (Ph. Devesa, L'opération de brokerage, 1993, Litec, n ° 57). The broker is a simple intermediary who limits himself to putting in touch the parties who use his services. He lets them contract directly if they wish. He does not intervene in the act. He does not handle the operation himself and he does not represent his clients (Ph. Le Tourneau, op. Cit.). When the reconciliation has taken place, it disappears (Cass. Req. June 16, 1902, S. 1903. 1. 38.)"
(Yves Rousseau, Labor Law Directory, Ed ° Dalloz, Employment Agencies, April 2006, §149).
In short, after the intermediary operation which may be the responsibility of the sports agent, the negotiation and conclusion of the contract may be the responsibility of the lawyer, the athlete's representative.
Finally, indicate that in his Practical Guide for attorneys in real estate transactions, the National Bar Council specifies that the lawyer can have an intermediation activity, provided that it is carried out as "accessory":
The application of this theory therefore supposes that intermediation remains an accessory to the relationship, necessarily more global, between the lawyer and his client.
Finally, the role of the lawyer is not limited to that of sports representative.
While French law fixes the activity of sports agent to only contracts relating to the paid exercise of a sports activity, the lawyer is not limited to his sole role of sports agent defined by the Law of March 28. 2011.
As a lawyer, the latter may therefore also advise, assist and represent his sports clients with a view to concluding contracts other than those relating to the paid exercise of a sports activity (image contract, sponsorship , ...) and defend them before all sporting, administrative and judicial, national and international courts.
However, once the relationship has been established, how do you choose between a sports agent and an attorney?
Once again, the parliamentary debates on the Law of March 28, 2011 provide some food for thought.
