As I wrote in part one of the article, the subject of Dual Representation in Football (‘Duality’) generates quite a lot of debate and difference of opinion amongst those affected by it, with some in favour and some against. It could be said that ‘dual-representation’ (duality) in football can be used as a force for good and also a force for bad. My personal opinion on duality is that it causes more problems than it solves, and disadvantages more people than it helps in football.

However it is quite easy to ‘spin’ the argument either way (for or against), and with that in mind and for the purpose of providing some balance, although I am personally not in favour of duality ‘Part 2’ not only addresses a case for duality, but also some looks at some of the ‘dark arts’ used in association with duality.

 


 

 “A Case for Dual Representation in Football, and the Associated ‘Dark Arts'”

 

The Argument Supporting ‘Duality’

Dual Representation and Duality in FootballNow I can hear some of my fellow agents and intermediaries recoiling in their chairs or getting more infuriated as they read what I have said thus far. I accept there are possible cases that can be put forward  to justify duality in representing the interests of player and club ………. and that is ……………………

Providing a Service to BOTH Player and Club ?

Many of my fellow agents/intermediaries will say they legitimately undertake duality in providing a service for the benefit of both the player and the club -whether it being helping the player (and their family) settle into the area of a new club, arranging a work permit for the player or something similar in helping make sure the player is settled at the club and performs to their best ability.

Granted I can see how ‘on the face of it’ this is arguably a legitimate reason for duality, however it is reasonable to assume that when this sometimes happens it is nothing more than a ‘smokescreen’ as to who is paying the agent/intermediary and who they primarily represent.

For example : consider the following, that could be argued as legitimate grounds where a agent/intermediary may entertain a reason for duality :

Helping the player ‘settle’  –

With most professional clubs this is not really a valid argument for the agent/intermediary to undertake duality, as most clubs facilitate this themselves (often in cooperation with the players agent).

The club will generally have player liaison and welfare officers (if not teams) to ensure that players and their families are looked after and catered for when settling into a new club and the subsequent area/region. After all if the club fail to do this; aren’t they at risk of having a player (asset) who they are paying for being unhappy, unsettled and then not performing for the club ?

But, what of the clubs who don’t have the capacity to facilitate a player liaison officer to help player settle? Well, then yes, this does generally fall to the agent to help their client settle and perform. However if your client is not settled, and you as their representative have put them in an environment or situation where it is difficult for them to settle and subsequently perform ….. it is your responsibility to overcome this and help them. If they don’t settle and  perform arguably it may well be partly your fault. And ultimately if your client fails to perform; this will not only impact on the players career, livelihood and reputation but also that of the agent.

It is in my mind part of the agents/intermediaries fiduciary duty to make sure their player client settles and is happy, and if this means you spending more time and resources on them, then so be it.

Arranging a work permit –

the reason why I highlight this may seem quite ambiguous; but I am led to believe this is one of the situations for which the rules on duality were relaxed.

However on reflection, isn’t arranging a work permit for an employee (i.e. a player) the task of the employer (i.e. the club)? Subsequently shouldn’t the club pay for this and/or arrange it. Even if they don’t, then surely it falls under the remit of the agent/intermediary to do so, in ensuring their client gets the move/deal they want. After all in most cases it is reasonable to presume the successful completion of said move/deal is in the agents/intermediaries interest also.

Ensuring the ‘deal’ or move progresses/happens smoothly –

This in my opinion is an absolute total and utter load of rubbish. To suggest this legitimises duality, and subsequently ‘rings alarm bells’ of an agent/intermediary having a clear ‘conflict of interests’ should they claim it as the reason for duality

I accept there are many agents/intermediaries who (to use the industry slang) are employed as ‘fixers’ or ‘(deal)-brokers’, to make sure a deal/transfer happens.

Don’t get me wrong I am not suggesting there is anything wrong with these individuals as they are providing a service for buyer and/or seller. As such they are typically employed by club(s) (whether buying or selling) to make sure things happen smoothly and the deal/transfer is successful. BUT in these circumstances why should there be any reason for duality in them representing the player as well?

So using this as a reason for duality is a simple non-starter in my book; if you are representing a client, whether player or club, your objective, if the opportunity and deal is right for your client is to make sure it happens and happens as smoothly as possible in the best interests of YOUR CLIENT! So why would duality benefit the agent/intermediary, player or club …. after all don’t all parties want the deal to be concluded in as straightforward and as expedient a fashion as possible?

 


 

The ‘Dark Arts‘ and ‘Grey Areas‘ Affecting ‘Duality

Many of the dark arts when it comes to duality are orientated around convincing a player it is in their best interests to agree to ‘duality’ and effectively become complicit in anything that may be slightly ‘dodgy’, if not illegal. The fact is duality rarely puts the player in pole-position when it comes to the benefits although it may benefit them.

 

Cloaking‘ Who Actually Pays the Agent – Player or Club ?

Under current FA intermediary regulations; in addition to the player paying their intermediary/agent directly there are two other ways the players representative can be paid :

  1. By the Club with fees deducted from the Player’s salary by the Club
    or
  2. As a taxable benefit in kind (known as P11D payment) paid by the Club on behalf of the Player

Now granted all of these details are (or should be) in the playing contract, however, how many players actually read the playing contract or the representation agreement and thus solely rely on the words of the representative (or another figure lurking nearby)?

So to the player who hasn’t read the detail, and relies solely on the word of a less reputable agent/intermediary, how would the said intermediary present this :

“don’t worry about my fees, the club are paying those, you don’t have to pay me”

…… yes, the club is physically make the transaction of payment, but in reality the player is paying the agent and the applicable tax at source.

 

The Tax (‘Saving’) Argument

The other tactic employed by some is to explain that by accepting duality, they will make a saving on the tax paid by the player in regards to their agents fees.

When compared to the overall amount saved in terms of tax when compared to the basic salary received by the player this is pretty minimal (even in the cases of those players in the high tax payer bands), when you consider they are effectively legitimising the agent/intermediary to represent both parties and possibly cultivating a ‘conflict of interest’ that may work against them.

Now I am no tax expert, but I would estimate the tax paid on such things as personal income tax and NI in regards to the agents fees we estimate would equate to as little as 0.5% (low end tax rate) to 1.22% (for high rate tax payers) of the players basic net salary.

Even if the player is paying VAT on the agents fees (which is the norm for most professional agents) you are looking at another 1% for an agent/intermediary working on a 5% commission – thus approximately at most to 2.22% of the players net basic salary.

* Note : these figures do not take into account commercial deals, image rights contracts and other elements associated with management companies or more advanced tax arrangements.

 

Switching‘ and ‘Shifting

This is an extreme factor that is on the fringes of the whole subject of duality but is relative to it, and clearly against the current FA regulations and arguably criminal under tax evasion laws. In fact even what appears to be the DeFacto and ‘usual’ 50:50 split arrangements on agents fees (between player and club) that are common in cases of duality may still draw the attention of the tax authorities. And yes the player is regarded as responsible for such things in regards to their own tax and employment affairs.

A player may well be sold the concept that; prior to signing a new agreement or contract with a club they vary the terms of the representation agreement to facilitate duality, with their agent/intermediary and thus a larger proportion of the agents fees being paid for by the club.


In fact ‘switching’ and ‘shadowing’ were terms created by the English FA in highlighting specific offences in regards to the old agent regulations (pre-April 2015).

 


 

The Dawn of ‘Triality‘ ? …… Surely Not ??????

So whilst you think everything is cosy in the world of football transactions and transfers if duality did not exist, I leave you with this; and a somewhat puzzling ‘monster’ that is looming on the horizon.

The ‘monster’ to which I refer is ‘triality’, where an agent/intermediary not only represents player and club, AND gets rewarded/paid by both ; BUT represents three parties, i.e. player, buying club and selling club …. and gets rewarded/paid by all three.

Some people would argue that surely this is not possible, as the football authorities would see this as a clear conflict of interest ? But, if you review the information released by the Football Association in 2016 detailing which registered intermediaries represented which parties, in which transactions and were (possibly) rewarded as such, then there are a few anomalies that could be accused of triality or being evidence of such practices.

 

Original Link : http://www.thefa.com/news/governance/2016/apr/agents-intermediaries-220416