by Luca Tettamanti
This article was originally published in M. Colucci, The FIFA Regulations on Working with Intermediaries – Implementation at National Level, I ed., Sports Law and Policy Centre, Issue I, 2015
1. Introduction
Following the issue by FIFA of the “Regulations on working with Intermediaries” (hereinafter “FIFA IR”), which contained a directive to each national association,1 the Swiss Football Association (hereinafter “ASF”) issued the “Regulations on the cooperation with Intermediaries” (hereinafter “ASF IR”) which came into force on 11 April 2015. These new regulations, drafted in German and French languages, substitute the previous ASF “Regulation on Player’s Agents” (hereinafter “ASF PAR”), issued on 24 November 2001 and its successive amendments.
It should be noted that the ASF IR prevails over the FIFA IR. However, pursuant to article 1 ASF IR, the FIFA IR applies without restriction when the ASF IR does not contain any particular provision, apart from the compulsory application of mandatory State rules.
This has an impact on some specific topics better explained infra.
ASF IR is directed towards individuals and entities which are naturally bound by the ASF statutes and decisions but also towards intermediaries who become subject to its application by the signature of the mandatory “Intermediary Declaration” prepared by and filed with the ASF.2
As a preliminary remark, it is interesting to note that, unlike other countries/ national associations, the system of intermediaries in Switzerland faces two different legal pillars: sport regulation and State law.
Indeed, the method of regulating intermediaries in Switzerland is not confined within the scope of sporting regulation but also has a legal basis in the Swiss “Code of Obligations” (hereinafter “CO”)3 as well as specific limits in the Swiss “Federal Act on Services of Labour and Lease of Services” (hereinafter “LSE”).4
Both of the above-mentioned legal provisions have a significant role in the proper implementation of the ASF IR and led to some particularities in its text. It is probably in view of such legislation that ASF followed a simple approach by regulating in the ASF IR only the main aspects of this particular profession.
2. Relevant national law and authorisations
ASF IR is now the primary source of law which regulates the services of an intermediary in the world of Swiss football.
Pursuant to its article 2(1), ASF IR regulates the services of an intermediary delivered in connection with (i) the conclusion of a new employment contract or its extension between a player and a club registered with the ASF and (ii) the conclusion of a transfer agreement between two clubs, of which at least one is affiliated to the ASF.
Whilst some doubts may arise on the application of the LSE when the intermediary introduces or assists two clubs to conclude a transfer agreement without representing the player concerned, the matter may become more complex in relation to Swiss employment law policies, for those intermediaries who put in contact or negotiate employment contracts between a club, as employer, and a player, as employee.
Indeed, due to the importance of their role in recruitment, intermediaries carrying out these services are bound not only by the ASF IR, or FIFA IR, but also by the mandatory rules of LSE.
In particular, pursuant to article 1(2), LSE applies to employment agents5 who practice “on a regular basis” meaning either by offering this service as a major part of their business6 or by exercising that activity at least ten times per year.7
These employment agents must obtain an authorisation from the Cantonal Employment Office in which they have their seat (entity) or they are domiciled (individual).
Additionally, recruitment agents who regularly work on job placement abroad (i.e. from Switzerland to other countries) or with regard to foreign workers coming to Switzerland8 must obtain a federal authorization of the Economy State Secretariat (hereinafter “SECO”) in addition to the Cantonal authorisation.9
To obtain this authorization, an intermediary must comply with strict preconditions set out in the LSE10 including inter alia:
(i) being a Swiss national or holding a permanent domicile;
(ii) being registered in the Swiss registry of commerce;
(iii) working in a proper organised office,11
(iv) do not carry out any other activity which conflicts with the interests of employers and employees and
(v) having a some years professional experience in the market where the recruitment is performed.12
It has to be noted that only intermediaries with their seats or domicile in Switzerland can be registered in the Swiss registry of commerce. Consequently, intermediaries based abroad cannot fulfil the LSE criteria and therefore prevented from undertaking their business on a regular basis in Switzerland.
To be consistent with the reality of the football market, SECO have confirmed that subject to lodging appropriate documentary evidence of the relationship, foreign intermediaries are permitted to act jointly with Swiss intermediaries, who remains the only ones entitled to introduce players with Swiss clubs, and share any revenue from the transaction undertaken.13
3. Definitions and Principles
ASF plainly followed the definition of FIFA IR and, by article 2(2) ASF IR, considers an intermediary as: “a physical or a legal person which, upon payment or for free, represents a player and/or a club in relation to the negotiation in connection to the conclusion or the extension of an employment contract, or a club in connection with the negotiation and conclusion of a transfer agreement”. However, the definition contained in ASF IR has to be read in conjunction with article 412 CO on brokerage contracts (“courtage” in French) whereby the broker (“courtier” in French) “is instructed to alert the principal to an opportunity to conclude a contract or to facilitate the conclusion of a contract in exchange for a fee”.
For the sake of completeness, pursuant to article 412(2) CO, for what is not specifically set forth in the relevant part of the CO, the brokerage contract is usually subject to the general provisions governing mandate contracts (established in articles 394 ff. CO). Thus, for intermediaries it is necessary to comply with the general principle of trust and inform the player or club of any circumstance that is relevant to the transaction or about the solvability of the counterparty and give an account of his activity.
In view of the foregoing, introducing a player and a club or two clubs to negotiate and conclude an employment or transfer contract could be regarded as a brokerage contract under articles 412 ff. CO. Accordingly, an intermediary can be considered a broker even if he does not complete the negotiations or conclude the employment contract but simply puts the two parties concerned in contact or begins the relevant negotiation.15
As for the general principles implemented by the ASF IR, although the reform of FIFA seems to suggest an unrestrained mode of operation for the intermediaries working in football, there are some peculiar aspects that must be taken into account when considering the activities of intermediaries in Switzerland.
Pursuant to article 4(1) ASF IR, all intermediary-client relationships must be regulated by a written “representation contract” signed in advance between the parties,16 which has to fulfil certain minimum requirements in addition to those established by article 5(2) FIFA IR.17
A standard form of the “representation contract” containing these minimum requirements, which complies also in part with those listed at article 8 LSE, is provided by ASF as Annex 1 to the ASF IR.
These minimum elements of the contract are as follows. Under article 4, lit. (a) ASF IR, the representation contract shall include the ability for either party to freely terminate the agreement at any time. The justification for this flexibility stems from the concept of trust which must always exist between the intermediary and his client, as in all the mandate contracts as prescribed under article 404 CO.18 This last provision is specifically recalled in the text of ASF IR, therefore it is accepted that the only limit to the right of termination arises when such termination can occur “at an inopportune time” as per article 404(2) CO.19 This article goes some way to protect the flexibility of the relationship between the intermediary and could prohibit a clause which for example allowed the client to appoint another intermediary or agencyto look for the same job pursuant to article 8(2) LSE.
Under article 4, lit. (b) ASF IR, when a player appoints an intermediary, the agreed remuneration payable by the client cannot be higher than 5% (five per cent) of the first year’s gross salary negotiated by the intermediary.20 This is another direct consequence of the application of the same limit provided by article 9 LSE which protects job-seekers from paying excessive commissions to brokers on their salaries. On the contrary, it has to be noted that no such a limitation applies when it is a club that appoints an intermediary to negotiate either with a player or with another club.
Under article 4, lit. (c) ASF IR the last criteria imposed is the inclusion of a provision establishing the jurisdiction of the Court of Arbitration for Sport of Lausanne – Switzerland (hereinafter “CAS”) in case of any dispute arising from or related to the contract. This provision should ease the referral of any issue to a sport court rather than to civil jurisdictions and in this respect it is in line with articles 89 and 95 ASF Statutes. However, as already pointed out by commentators, the imposition of the CAS jurisdiction may create discrepancies with the LSE affecting and possibly even annulling its competence.21 Moreover, it has to be considered whether such imposition can be considered as an interference or constraint to the consent to arbitrate the dispute, which may even affect the material validity of the arbitration agreement.22 For the sake of completeness, ASF IR has not provided for the nullity of a jurisdiction clause referring the dispute to another forum and this requirement is the only one of the three above-listed where infringement does not violate the CO or LSE. It will therefore be a matter of practical approach by ASF to register or not contracts not containing a jurisdiction clause referring a dispute to the CAS. In addition to these three explicit minimum requirements, another interesting point to be further analysed is the option for the player or club to appoint the intermediary on an exclusive basis. Although the ASF IR is silent on this particular point, this right is explicitly granted according to the standard “representation contract” provided as Annex 1 to ASF IR, which contains two boxes to be ticked in case the client intends to grant the intermediary exclusivity or not in their legal relationship.
Firstly, pursuant to Swiss jurisprudence and legal scholars, under certain circumstances the agreement of the parties to grant to the broker an exclusive position can be considered as a waiver of the necessity for the same broker to establish a causal link between his activities and the conclusion of the contract of by the client in order to receive the agreed fees.23
However, such circumstance may create problems where the brokerage contract is construed as a job-placement by a broker (i.e. an intermediary) of his job-seeker (i.e. a player). This kind of relationship is regulated by the LSE which, under its article 8(2), makes the parties’ choice in favour of exclusivity null and void.24
This approach is aimed to protect the job-seeker, in this case the player, as the weaker party providing him the maximum freedom to use another job- placer, rectius another intermediary, in his search for employment and not to restrict his right of choice. In other words, individuals looking for a new job cannot face difficulties in finding a new employer due to an exclusive relationship with a particular intermediary.25
For this reason, the same protection cannot be provided where an intermediary acts for a club, as employer, and not for the player.26
Finally, the right of a client, player or a club, to act alone in concluding an employment or transfer contract is valid and recognised even where exclusivity is granted to an intermediary. Therefore, the client will not be obliged to pay the intermediary a fee in cases where the brokerage contract does not stipulate a prohibition preventing the client acting alone.27 It should be noted that the standard “representation contract” of ASF IR does not provide for such specification. As a final remark regarding the duration of the contract between an intermediary and his client, player or club, although no reference is made in the text of ASF IR to a particular term, the standard ASF “representation contract” prescribes a maximum duration of 2 (two) years. However, considering the right of the client to terminate the contract with the intermediary at any time under article 4, lit. (a) ASF IR, this appears more as a clerical mistake created by the reproduction by ASF of the previous standard “representation contract” issued by the same ASF pursuant to the ASF PAR. In fact, such previous regulations provided for a maximum duration of two years in its articles to comply with the now obsolete FIFA PAR.
4. Declaration of the intermediary
In addition to the above contractual requirements, pursuant to article 5 ASF IR, whoever uses the services of an intermediary in concluding a transfer or employment contract must ensure by reasonable means that the intermediary signs, without any modification, the “Intermediary Declaration” attached to the ASF IR as Annex 2 and 3 (respectively referred to an intermediary as individual or entity). At the same time, if a party chooses not to use the services of an intermediary, they must sign and file the “Declaration of No Services of Intermediary” attached as Annex 3 for the club and as Annex 4 for the player.28
Parties must complete and sign the “Declarations” at the time the contracts (or contract extension) is executed.
Pursuant to article 6(1) ASF IR, these various “Declarations” have been attached to the “ASF Standard Professional Player Contract” that any professional player in Switzerland has to sign to compete in the top tier of Swiss football29 to ensure their use. The club must then submit with its relevant league an original copy signed by all the parties involved in concluding the “ASF Standard Professional Player Contract” executed or extended, and its corresponding “Declarations”, either together with the request of registration of the player or within 10 (ten) days from its renewal.30
On the other hand, pursuant to article 7 ASF IR, when an ASF club uses the services of an intermediary to conclude a transfer, it must file the relevant “Declaration”, no later than 10 days after the execution of the transfer agreement. This process applies both to national and international transfers of players to a club in the ASF and vice versa. Clubs that opt not to use the services of an intermediary for a national or international transaction must file the corresponding “Declaration” with the ASF also within the same time-limit. In all the above cases, pursuant to article 8 ASF IR, the club is obliged to file the relevant “representation contract” with the intermediary together with his “Declaration”.
Although the system appears to be quite bureaucratic, ASF did not establish in the ASF IR any particular consequence in terms of validity or enforceability of the “representation contract” signed by the intermediaries involved if they are not filed with the ASF or if the relevant “Declarations” are not filed and deposited with the ASF.
As for their content, the “Declarations” provided by ASF are the same as those attached by FIFA to the FIFA IR, the only difference being that they specifically refer to LSE as the primary source of law that the intermediaries must respect.
The only addition is that the “Declarations”, at clause 8 provides for each intermediary to complete the information relating to the type of contract (transfer or employment), the parties to the contract, the total amount of commission and the party making payment.
5. Registration
Pursuant to article 9 ASF IR, ASF keeps a registry of intermediaries together with the Swiss Football League.
ASF must register the intermediaries on the basis of the “Declarations” duly recorded.
The situation under the ASF IR is straight forward: if an individual or an entity wishes to represent, players or clubs as an intermediary in transfers or contract negotiations and/or their conclusion, they need to register with the ASF but only if the respective transaction is successfully concluded. This means that an intermediary must be registered with ASF and SFL only if the relevant “Declaration” is signed and filed with the ASF in connection with a particular transaction.
Consequently, as ASF made it clear, “the registration of intermediaries is always conducted at the same time when they participate in a concrete transaction. Conversely, there is no “abstract” registration or independent from a concrete transaction”.31
An important corollary is that ASF has not settled any particular duration for the registration as an ASF-authorised intermediary to last. It seems therefore that, once an intermediary is registered with ASF, it will keep his registration, although linked to the transaction performed, indefinitely. Furthermore, as ASF has avoided the prior registration system adopted by other national associations, ASF decided not to request the payment of any fee for the registration of an intermediary.
6. Publication
ASF requires that intermediaries operating in Switzerland disclose details and some aggregate data relating to their business which is then published on the ASF website. Pursuant to article 10 ASF IR, before the end of March of every year, the ASF shall publish on its website a list containing the names of all the intermediaries registered during the previous twelve months and the transactions in which they have participated.
ASF do not disclose the remuneration received by any intermediary.
However, ASF will publish on its website the total remuneration paid to intermediaries during the previous twelve months by all players registered with an ASF club and the total remuneration each club separately paid to intermediaries during the previous twelve months.
It should be noted that the intermediary by signing the “Declaration”, at point 10 explicitly consents to the use, storage and publication of such data by the ASF.
ASF IR is directed towards individuals and entities which are naturally bound by the ASF statutes and decisions but also towards intermediaries who become subject to its application by the signature of the mandatory “Intermediary Declaration” prepared by and filed with the ASF.32
7. Requirements and conditions
ASF IR and the LSE, include regulations aimed at keeping intermediary activities clean and transparent:
- 7.1 Impeccable reputation
Pursuant to point 3. of the ASF “Declaration”, the intermediary must confirm a flawless and irreproachable reputation and no criminal convictions for a financial or violent crime. This condition, which is no further specified in the text of the ASF IR, amounts to a self-certification, via the “Declaration” and does not form part of any pre-requisite to be registered as intermediary with the ASF. This follows on from the approach of the ASF not to implement a preventative but, a case by case registration.
The ASF has not issued any detailed directive to specify the concept of “financial or violent crime”. However, the absence of such crimes corresponds to the applicable minimum professional standard provided for by the LSE at article 3. The necessity of having a “good reputation” as a condition to obtaining the authorisation under article 3(2), lit. c) LSE has been better defined as the absence of: previous convictions, injunctions, bankruptcy or fiscal debts if occurred in relation to job placement activities or to the damage of workers or that put in danger the capacity of the job-placer to manage those type of activities.33
Consequently, the ASF can rely upon the filter made by the competent cantonal or federal authorities in terms of “good reputation” of the intermediaries registered in Switzerland.
- 7.2 Conflicts of Interests
As recalled by the “Declarations”, according to the FIFA IR principles, the intermediary shall not hold any position among those listed at point 11 of the Definitions in the FIFA Statute34 and they can neither have, nor suggest having, any contractual relationship with any league, association, confederation or FIFA that can create a conflict of interest.
Under article 3(1), lit. c) LSE, a job-placer, (including an intermediary), cannot exercise any activity that may conflict with the interest of his client (being a player or a club). Normally this rule prevents employers undertaking job-placement activities connected with their main business and thus employing their clients. In football this situation is prevented ab origine by the officials (especially board members of clubs) being prohibited from becoming intermediaries. On the other hand, the fact that intermediaries can be also the managers or representatives of the players does not constitute a conflict of interest preventing the intermediary from obtaining the authorisation of the LSE.35
Under article 415 CO if a broker acts in the interests of a third party in breach of the brokerage contract, this can lead to him forfeiting his right to receive his remuneration and expenses. This provision derives from the general concept of good faith and fiduciary obligation that a broker is required to comply with as in all contracts to which articles 394 and 398 CO on mandate apply.
Therefore, although not specified in the ASF IR, Swiss and sporting jurisprudence confirm that an intermediary can represent both a player and a club in a transaction if both are fully aware of the intermediary’s dual representation.36 If it is shown that the intermediary acted in good faith and his client was aware of the potential conflict of interest, there is no violation of article 415 CO and the intermediary remains entitled to his remuneration.
8. Remuneration
Payment of remuneration in exchange for the services of the intermediary is a necessary part of the intermediation contractual relationship.
However, although pursuant to article 412 CO brokerage contracts are necessarily mandates in return for payment, the ASF IR explicitly allow under article 2(2) the possibility of services being provided free of charge.
This is especially true in case of mediation involving minors where, as imposed by the FIFA IR and confirmed by point 6 of the “Declaration” of the ASF IR, intermediaries are not permitted to charge commission where they are negotiating an employment contract or a transfer. On the contrary the possibility to provide free services implies the ability for an intermediary to conclude a contract with a minor37 under the ASF IR.
Apart from this it is usual practice for the client to pay the broker. In particular, pursuant to article 413 CO, in order to substantiate the request of remuneration, a broker as well as an intermediary38 must prove he has performed an effective activity and, in particular, his involvement in the transaction where his activity has been causal to its conclusion. Swiss and sporting jurisprudence have confirmed this.39 On the contrary, if not specifically provided for in the contract, the broker cannot request the reimbursement of his expenses as the aim of the provision is to remunerate only a successful result.
The ASF IR copes with the issue of remuneration according to the limit imposed by LSE. Therefore, it is interesting to note the differences between the provisions regarding the remuneration to be paid by the club compared to the remuneration to be paid by the player.
What concerns intermediaries representing players, as supra exposed, is that the ASF IR provides in article 4(2), lit. b) that the agreed remuneration cannot exceed 5% of the first year’s gross base salary (including social charges and deductions for board and lodging)40 set out in the employment contract negotiated by the intermediary.41 Consequently, any different provision in the “representation contract” would not be enforceable under Swiss law.
On the other hand, what concerns intermediaries acting for a club is thatthere are no directives in the ASF IR or mandatory provisions in the LSE regarding any applicable limit remuneration. This applies both in cases where the intermediary works in relation to the conclusion of a transfer or an employment contract. ASF IR is also silent on the possibility of an intermediary acting for both player and club and receiving double remuneration for the same transaction. This is possible considering that the FIFA IR, which supplements ASF IR, provides under article 8(3), albeit conditional on the express previous written consent being given by all the parties. This is also accepted by in Swiss jurisprudence in limited cases and to the extent that any form of conflict of interest is avoided.42
Finally, in cases where the parties do not expressly establish the remuneration due by the client to the intermediary, according to article 414 CO they are deemed to have agreed a fee determined by the tariffs, if they exist, or otherwise by custom.
Considering that the amounts established in the FIFA IR – which apply to ASF IR in the case of appointment of an intermediary by a club – are simple indications,43 they do not appear as tariffs in football. Therefore it is submitted that it will be possible that a judge may be guided by such directives as a custom in the football sector but only if the future implementation in practice of the FIFA IR by national associations will follow them.
If tariffs and custom do not exist, the judge in his discretion has to determine the amount of the remuneration for the intermediary44 but it must correspond to the services effectively rendered by the intermediary, taking in consideration the circumstances of the specific case, the type and the duration of the mandate, the level of responsibility, the profession and position of the agent.45
9. Disciplinary Powers and Sanctions
Under article 11 ASF IR, any violation of the regulations can be prosecuted ex officio by the ASF General Secretary or upon denunciation.46
All disciplinary issues arising in the context of an intermediary agreement according to article 50 ASF Statutes fall within the jurisdiction of the “ASF Commission of Control and Discipline”. This Commission is the competent body to pronounce disciplinary sanctions against intermediaries applying the “ASF Disciplinary Regulations”.
Once determined and final, all sanctions and other disciplinary measures shall be published (as expressly accepted by the intermediary in signing the relevant “Declaration”) on the ASF website to provide transparency ASF will communicate all such decisions to FIFA, who then decides on their worldwide extension.
As already mentioned, the scope and application of the set of rules contained in the ASF IR, is directed towards individual and entities which are naturally bound by the ASF statutes and decisions.
Indeed no doubt on the above may arise as intermediaries are now explicitly referred to as “Officials” in the “Definitions” part of the ASF Statutes.47 Furthermore, by signing the “Declaration”, the intermediary consents “to be linked, in relation to the activity of intermediary, with the statutes and regulations of the association (in particular the ASF and its sections), of the confederations and of FIFA”.48
Therefore, there can be no doubt as to the jurisdiction of the “ASF Commission of Control and Discipline” with regard to intermediaries and the ability of this body to impose disciplinary sanctions on them in relation to their activity.
10. Conclusion
The introduction of the FIFA IR has theoretically deeply revolutionized the scenario of football agents and in particular the way they will conduct their operations in the football world in the light of the extent of deregulation now introduced. However, this presumed deregulation now faces the peculiarities of each national State and football association more than when FIFA PAR was in force.
This is all the more true in Switzerland, where moreover FIFA has its seat, where the football market is regulated by ASF, an association which chose an apparent “less is more” approach to intermediaries.
However, whilst ASF has interpreted the FIFA IR as creating a set of rules which are very thin and flexible encumbering intermediaries operating in Switzerland with few obstacles, the same ASF, and thus intermediaries keen to operate in Switzerland, must comply with the strict limits imposed by State laws and LSE in particular. This also enforces a form of protectionist approach against foreign intermediaries which clashes with the current global scenario of football.
The result is that the ASF IR, due to the requirement to take into account and be subject to the mandatory rules of job placement in Switzerland, includes provisions which seems to follow different scopes in a twin-track policy.
Provisions such as the necessity for intermediaries to register with ASF on a case by case basis and free of any charge or the ASF’s decision to leave to the contractual freedom of the parties the remuneration that should be paid by a club to an intermediary follows the concept of deregulation. On the other hand, rules such as the maximum remuneration for an intermediary appointed by a player fixed at 5% of the player’s gross first year’s salary or the right for the client to terminate the contract with the intermediary at any time, which derive with no modification from the job-placement world, seems not to fit with the specificity and the daily reality of the football world and leaves it open to potential malicious implementation by the client or other intermediaries.
All these and other peculiarities of the ASF IR, which have been covered in this article, demonstrate that the ASF has regulated less but in a very effective way by explicit or implicit reference to other lex superior.
In such regard, it will be interesting to see how contracts signed between intermediaries and players abroad may coexist with the strict limitation imposed by the ASF IR. Considering that the activity of intermediary acting as job-placer in Switzerland has to comply with the LSE and the same intermediaries must have a proper authorisation issued by the competent authorities, foreign intermediaries shall be obliged to work together with Swiss intermediaries to perform their activities in Switzerland. However, this situation will cause a potential conflict between agreements previously signed between players or clubs and their intermediaries abroad which do not comply with the above-mentioned Swiss rules. It is clear that the figure of the intermediary in Switzerland is not open to misinterpretation; it is also probably too soon to expect that the ASF should push for a more autonomous application of its own rules, in compliance with the principle of specificity of football. However, this is an objective that the ASF may seriously consider after the initial application of this new very peculiar regulation.
NB: Terms referring to individuals in this contribution are applicable to both genders. Any term in the singular applies to the plural and vice-versa.
1 Pursuant to article 1(2) FIFA IR, associations are required to implement and enforce at least these minimum standards/requirements and to draw up regulations that shall incorporate the principles established in these provisions.
2 Similar to the legal scheme of the so called “contract of adhesion”.
3 In the original French version “Loi fédérale complétant le Code civil suisse (Livre cinquième: Droit des obligations)”.
4 In the original French version “Loi feìdeìrale sur le service de l’emploi et la location de services” (LSE) of 6 October 1989, published in French, German and Italian language at https://www.admin.ch/ opc/fr/classified-compilation/19890206/index.html (last visit: 25 September 2015).
5 Meaning “job-placers”. Therefore the LSE does not apply to intermediaries dealing with other type of services or consultancy not related with employment of athletes and to sports where no labour contract is signed to compete (for instance, sponsorship or endorsement contracts)
6 Meaning by offering themselves as job placers via web or other public media or even by including such activity in the scope of their company in the Swiss registry of commerce.
7 Article 2 governmental Ordinance implementing the LSE (OSE).
8 Conversely, in case of foreigners placed abroad, the Swiss intermediary is subject to LSE only if at least part of the activities to place the foreigner are performed in Switzerland (SECO, “Indications and Comments to LSE”).
9 Articles 2 and 3 LSE. Job-placers, and thus intermediaries in casu, who act without authorisation under the LSE may be fined up to CHF 100,000 pursuant to article 39(1), lit. a) LSE.
10 Article 3 LSE.
11 This condition tries to avoid the creation of mere “p.o. box companies” providing services of job placement.
12 Article 3(2), lit. b) LSE and article 9 OSE. For “multi-year professional experience” is normally considered an experience in the market of at least 3 years (Commentary by SECO to the LSE, p. 29).
13 Official circular letter by SECO to ASF on 14 March 2012 – published in French language at: www.football.ch/it/Portaldata/1/Resources/dokumente/Conditions_l_gales_-_Informations_ du_SECO.pdf (last visit: 25 September 2015). Having obviously in mind that if the activity performed is related to the conclusion of a player’s employment contract, only the Swiss intermediary shall have its remuneration granted and allowed under the LSE.
14 A. Rigozzi in Player’s Agent World Wide, The Hague 2007, 533.
15 CAS 2011/A/2660 V. D’Ippolito v/ Danubio FC, §§ 8.34 – 8.36.
16 In case the player concerned is a minor, also the minor’s parents or legal guardian(s) must sign the “representation contract” together with the player. It is submitted that The wording “representation contract”, which ASF borrowed from the previous ASF PAR and from FIFA IR, reflects the previous approach regarding “agents” and their representation of players or clubs, and it should be possibly replaced by a more appropriate name as “mediation contract”.
17 Whoever is whishing to operate as and with an intermediary must use or peremptorily take in consideration the representation form attached at Annex 1 of the ASF IR’s.
18 In its English free translation: “Art. 404 1 The mandate contract may be revoked or terminated at any time by either party. 2 However, a party doing so at an inopportune juncture must compensate the other for any resultant damage”.
19 For instance, in football this can be the case when a player terminates the contract one day before the signing of his employment contract negotiated by the intermediary not to pay him the due fees. In these cases the intermediary can request the payment of compensation for any resultant damage only if the client did not have serious reasons (Swiss Federal Tribunal (“SFT”) 4C_78/2007, c. 5.4.
20 As clarified by article 3 “Ordinance on Fees, commissions and security under the law on the employment service”, (O-Emol LSE), if more intermediaries cooperate to the implementation of the contract, the fees cannot be invoiced more than once to the job-seeker with the only exception of when the job-placer had to cooperate with foreign job-placers to place the job-seeker. In such a case the fee can be raised up to the half of the original fee.
21 For a detailed and extensive analysis, A. Rigozzi, op. cit., 536 – 539.
22 SFT 4P.172/2006 judgment of 22 March 2007 Guillermo Cañas v. ATP Tour & CAS. For a discussion of the problem of “forced arbitration” in sport, see A. Rigozzi, L’arbitrage international en matière de sport, Helbing & Lichtenhahn, 2005, N. 475 ff. and N. 811 ff.
23 C. Ammann in Basler Kommentar, Basel, 4th ed., 2007, art. 412 n. 13 ff.; SFT 103 II 129 and SFT 100 II 361.
24 In its French version: “2. Sont nuls et non avenus les arrangements qui: a. interdisent au demandeur d’emploi de s’adresser à un autre placeur; (…)” ; A.Ritter, Das revidierte Arbeitsvermittlungsgesetz, Bern, 1994, 98 ff.
25 Commentary by SECO of LSE, 45.
26 CAS 2013/O/3310 agent X v/ Club Y (unpublished), § 110 quoting Magg, Clint, Das Spielervermittlerreglement der FIFA, Bern, 2012, p. 198; CAS 2007/A/1371 (issued on 8 August 2008) José Ignacio Urquijo Goitia v/ Liedson da Silva Muñiz and FIFA, § 6.25.
27 CAS 2007/A/1371 (issued on 16 february 2010) José Ignacio Urquijo Goitia v/ Liedson da Silva Muñiz, § 11.18; CAS 2006/A/1019 Gurel v/ Ozalan, 9.
28 In the event a player appointed an intermediary who is then paid by the club of the player on his behalf, the club has to fill the “Declaration of No Services of Intermediary” whilst the player must file the “Intermediary Declaration” where it will appear that the fee is paid by the club (SFL circular letter to clubs on 25 June 2015).
29 Which are the Super League and Challenge League, 1st and 2nd tier of Swiss football, managed by the Swiss Football League – SFL. Players and clubs are authorized and may sign those contracts also in the lower tiers, named as Promotion League, First League and Second Interregional League.
30 This derives also by article 3(1) and (1bis) “Regulations on the Status of Non-Amateur Players” of the ASF.
31 Circular letter by ASF on 11 April 2015. Original French text: “L’enregistrement des intermédiaires se fait donc toujours et en même temps uniquement lorsqu’ils participent à une transaction concrète. En revanche, il n’y a pas d’enregistrement « abstrait », respec-tivement indépendant d’une transaction concrète”.
32 In its original French version: “10. Je consens, conformément à l’art. 6 al. 3 du Règlement de la FIFA sur la collaboration avec les intermédiaires, à ce que l’association concernée détienne et traite toute donnée à des fins de publication”.
33 The candidate has to attach to his application recent proofs of his good reputation which are dated no longer than two years before (Commentary by SECO to the LSE, 30).
34 Point 11 of the Definitions of the FIFA Statutes recites: “Official: every board member, committee member, referee and assistant referee, coach, trainer and any other person responsible for technical, medical and administrative matters in FIFA, a Confederation, Association, League or Club as well as all other persons obliged to comply with the FIFA Statutes (except Players and intermediaries)”.
35 A. Rigozzi, op cit., 527.
36 SFT 111 II 366; CAS 2012/A/2988 PFC CSKA Sofia v. Loïc Bensaïd, §§ 118 – 119.
37 As defined in point 11 of the “Definition” section of the “FIFA Regulation on the Status and Transfer of Players”. Provided that the same contract is signed also by the minor’s parents or legal representatives.
38 Article 9(2) LSE.
39 SFT 84 II 542; SFT 72 II 84; CAS 2007/A/1371 (issued on 8 August 2008) José Ignacio Urquijo Goitia v/ Liedson da Silva Muniz & FIFA, §§ 6.21 – 6.22.
40 VAT can be charged to the client even if the remuneration then goes beyond this limit (article 3a of O-Emol LSE).
41 Art. 9 LSE; Article 3 O-Emol LSE.
42 This is the case, for instance, if the obligations of the intermediary is limited to put in contact the parties, or to pass some conditions between them or if one party gave specific instructions on the elements of the accepted transaction in advance. In case of doubt on the validity of double representation, the intermediary must seek the express consent of the parties not to lose his entitlement to remuneration pursuant to article 415 (F. Rayroux in Commentaire Romand, Code des Obligations I, 2nd edition, Helbing Lichtenhahn, article 415, N.3, 2496).
43 Article 7(3) FIFA IR provides for “benchmarks” equal to 3% of the player’s basic gross income for the entire duration of the relevant employment contract for intermediaries appointed by clubs and players and 3% of the transfer fee paid in connection with a transfer of a player for intermediaries appointed by clubs.
44 SFT 101 II 109, 111; C. Ammann, Basler Kommentar, Obligationenrecht I, 5th edition, Art. 414 OR, N1 and N5.
45 In CAS 2011/A/2660 V. D’Ippolito v/ Danubio FC, in a case where the broker was “only asked to begin negotiations” and he did not participate to further stages and where he had “quite moderate responsibility in the completion of the transfer”, the Panel decided to grant him the 3% of the transfer fee paid between two clubs for the transfer of a player.
46 ASF has not implemented a system where disciplinary violations are prosecuted by sporting prosecutors.
47 In its English translation, point 9 of the Definitions includes amongst the Officials : “the individuals and entities that provide services of intermediaries according to the ASF IR”.
48 In the original French version: “je déclare que l’entreprise que je représente et moi-même sommes d’accord d’être liés, en relation avec notre activité d’intermédiaires, par les statuts et règlements des associations (en particulier de l’Association Suisse de Football et de ses sections), des confédérations et de la FIFA”.
