As a sports agent in the US, the number of licenses, regulations, and laws can be daunting. A basketball agent needs to be FIBA licensed, certified by the NBA, and compliant with the states in which he recruits. Often, the least important of these requirements to the agent is compliance with State law.
Do sports agents need written player-agent agreements?
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.… Read More
Yesterday FIBA announced it is sanctioning S.S. Sutor Srl, Montegranaro for failure to pay BAT arbitration awards BAT 0439/13 – Burns, Hart Sports Management, Players Group Srl vs. SS Sutor Srl; BAT 0449/13 – Steele, Greig, Slay vs. SS Sutor Srl; BAT 0463/13 – Johnson vs. SS Sutor Srl. The BAT issued the above awards against Sutor on March 20, 2014. The original story can be seen here.
BFSN Law represented all 7 claimants against Sutor. The awards are worth an approximate $350,000.00 in total.… Read More
The relationship between the BAT and FIBA may call into question the independence of the BAT. In the early days of the BAT, the tribunal was called the FIBA Arbitral Tribunal. The BAT was originally funded by FIBA and is still to this day guaranteed by FIBA. See FIBA Reg 296 (The financing of the BAT is guaranteed by FIBA, it being understood that the BAT is designed to be self-financing). The tribunal’s name was changed in an attempt to make the independence of the BAT more clear (it was also changed so people would stop referring to the female BAT secretariat as the “FAT lady”).
BAT awards may no longer be appealable except in very limited situations. But that wasn’t always the case. From its inception in 2006 until 2010, the BAT included in every award a section titled “Appeal,” under which the following paragraph was included:
Awards of the FAT can only be appealed to the Court of Arbitration for Sport (CAS), Lausanne, Switzerland and any such appeal must be lodged with CAS within 21 days from the communication of the award. The CAS shall decide the appeal ex aequo et bono and in accordance with the Code of Sports-related Arbitration, in particular the Special Provisions Applicable to the Appeal Arbitration Procedure.
However, in 2010 FIBA and the BAT removed the appeal language from the awards and the standard arbitration clause in an effort to maximize leverage against breaching teams. Not unsurprisingly many teams were intentionally breaching contracts, not participating in the arbitration, and appealing the BAT awards to postpone as long as possible payment of the award.… Read More
This is the second part of a two-part series on rollover provisions in player-agent agreements. To see the first part, click here.
The point of all this, of course, is how can an agent enforce his player-agent agreement on a) players who go behind the agent’s back to sign with a new agent, and b) agents who poach players under a binding contract.
a) Enforcing against Players who Breach
How can an agent enforce his player-agent contract against a player? The agent can always petition FIBA to sanction the player. The FIBA regulations prohibit certain actions by players. “A player may use the services of only one Agent licensed under the terms and conditions of these Regulations.” FIBA Reg. 163. FIBA has the authority to sanction Players who violate FIBA Regulations: “In the event that a player uses the services of . . . more than one agent at the same time, FIBA acting through the Secretary General is entitled to:
The past few months we have received several complaints from FIBA agents about players signing contracts behind their backs and other agents poaching players. This two-part article explores the legality under the FIBA regulations of rollover clauses in player-agent agreements and what remedies agents have against their former players and other agents. To view the second part, click here.
A rollover clause is a contractual provision that causes the contract to roll over after each agreed period until cancelled by one party. Many FIBA agents utilize a 1-year rollover provision that requires notice prior to 30 days before the end of the 1-year term. This type of provision eliminates the need to re-sign the player each year and gives both the player and agent confidence for the future. Many player-agent agreements are signed in the summer months, which is the peak scouting and signing season for European teams. If an agent were constantly unsure about a player’s status because the agent had to re-sign the player during the summer each year, that agent would be less likely to focus his energy on getting that player a job.… Read More
One of the most common questions we hear about BAT cases is what law does the Tribunal use. The answer: ex aequo et bono, which is a Latin phrase that means “In equity and good conscience” legal-dictionary.com. The BAT rules state ex aequo et bono means the arbitrator applies “general considerations of justice and fairness without reference to any particular national or international law.” BAT Rule 15.1. But what does that mean? Essentially, the BAT decides cases based on fairness and equity for the betterment of the parties.
This can be a confusing concept for many who are used to state and federal statutes being applied in their home courts. Especially individuals who come from civil law jurisdictions based on the Napoleonic Code, which include most of Europe and Latin America. The civil code is a series of very specific statutes that pronounce the law in a particular state. The law is written, stemming from statutes, and is not decided by the particular tribunal hearing the dispute.… Read More
Many players and clubs do not retain counsel for BAT arbitrations, often to their detriment. BAT arbitrations are touted as quick, efficient, and relatively inexpensive. See BAT Rule 0.1, 0.2. But this does not mean the proceedings are uncomplicated. IBPA’s researchers have discovered many cases that hinged on complex legal issues, such as the scope of the arbitration agreement and jurisdiction of the BAT.
For example, in0051, Pesic v. Dynamo, a dispute between a Serbian/German coach (the “Coach”) and Russian Men’s Basketball Club (the “Club”), the contract at issue contained confusing provisions providing for disputes to be litigated in a Russian Arbitral Tribunal and the BAT. The Club argued that the Coach had to litigate in the Russian Arbitral Tribunal first and could only appeal to the BAT afterwards. Citing http://www.supcourt.ru/catalog.php?c1=English, the arbitrator decided that this construction of the contract made no sense because the Russian Arbitral Tribunal was actually a state court with its own complex appeals system.… Read More