Does a Player-Agent Agreement have to be in writing? The simple answer is yes, but it may not matter.
FIBA regulations require a “written contract” between a player and agent. But no formalities to that written agreement are prescribed by FIBA. Any writing evidencing the agreement will suffice. FIBA Regulations Article 3-156 states:
An Agent may represent a player or manage his affairs under the terms of article 3-155 above only if he has a written contract with the player in question.
FIBA does not even require the writing to be signed by both parties. Ostensibly, FIBA only requires the writing to be signed by the party against whom enforcement is sought.
For example, an email in which the player asks the agent to find him a job should be sufficient to create a player-agent agreement under FIBA regulations. If the agent subsequently gets a job offer for the player, that agent should be due the agent fee for the contract. Most emails end with the writer listing his or her name. That would constitute a signing and is usually sufficient for other contracts in which a writing is required. See Electronic Signatures in Global and National Commerce, 15 U.S. Code § 7001.
Even if no written agreement between the Player and Agent exists, the Agents may be able to recover agent fees under the doctrine of quantum meruit. Quantum meruit is an equitable theory of recovery that is intended to prevent unjust enrichment when there is an implied agreement to pay for benefits received. In re Kellogg Brown & Roof, Inc. 166 S.W.3d 732, 740 (Tex. 2005). Quantum meruit does not arise from contract, but is independent of it. Vortt Expl. Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990). As a result, an action for quantum meruit generally cannot be brought when an express contract covers the services provided. In re Kellogg, 166 S.W.3d at 740. The elements of an action for quantum meruit are the following:
1) The plaintiff provided valuable services
2) for the defendant,
3) the defendant accepted the services, and
4) the defendant had reasonable notice that the plaintiff expected compensation for the services.
Although the above authority comes from Texas, similar laws exist in every state in the United States.
Taking an example where an agent negotiates a contract offer from a team for a player and the player signs but does not include the agent in the contract. The agent should meet all of the above requirements for quantum meruit recovery. First, the agent provided his valuable services in negotiating the contract with Team. Second, those services were provided for the benefit of Player. Third, Player accepted the services by signing the contract to play with Team. Finally, Player had reasonable notice that the Agent expected compensation for the negotiation of the contract because it is well known that agents expect to be compensated for negotiating contacts. The amount the Agent could recover would be the reasonable value of the services rendered, which would equal the amount of the agent fees in the contract.
So, even if an agent does not technically comply with the FIBA regulations by securing a formal written agreement with the player, there is more than one way in which the agent should be owed the agent fee––breach of contract if there are emails or other writings evidencing an agreement between the player and the agent, and quantum meruit.