Agent of change?

Non-lawyer agents occupy a controversial place in football lore. But what role can solicitor-agents play, and is there any room for them in this closed-shop sports circle? Neil Rose gets on the ball

The hourly rate may be falling out of favour in many parts of the profession, but there is one class of client for whom it retains considerable appeal – footballers.


While most players are represented by agents and pay over a percentage of transfer fees or the value of new contracts for their services, those represented by solicitors often just get the usual bill for hours spent on the deal. Given the sums involved in such deals, the latter can be a far lower figure.


Agents, controversial at the best of times, have been thrown further into the spotlight by a host of recent events. First, there was the Ashley Cole ‘tapping-up’ affair – in which the role of agents was criticised – and the news that Wayne Rooney’s agent is to face Football Association (FA) charges that he poached the England star from a rival, which he has strongly denied and pledged to fight. Criticism of Harry Kewell and his agent in a newspaper column led to the Liverpool player’s libel action against Gary Lineker and others, which settled out of court after the jury failed to reach a verdict. But last month, another agent-related case made it through to judgment.


Mr Justice Jack rejected a claim brought by Brussels-based FIFA-registered agent Jacques Lichtenstein – working with former footballer Ronny Rosenthal – that he was entitled to 10% commission on the fee Brazilian club Athletico Mineiro received from Arsenal in 2002 for the transfer of Gilberto Silva.


The judge ruled that Arsenal had a pre-existing interest in the player and that, while the pair may have accelerated the process, they did not create the interest, which was required under their agreement with the Brazilian club to trigger a payment of 10% of the transfer fee.


Football clubs are expressly prohibited from dealing with agents who do not have a licence from FIFA, world football’s governing body, but there are four exceptions: parents, spouses and siblings of the player – and lawyers.


Back in 1996, FIFA accepted arguments put by the Law Society and supported by the FA that players were sufficiently well protected as clients of solicitors – and indeed lawyers everywhere – without the need for further regulation.


Non-lawyers need to pass a written examination set by their national FA, obtain professional liability insurance (or lodge a bond if they cannot) and sign up to a code of conduct before they can gain a licence. There are 2,500 FIFA-licensed agents around the world, and only Italy has more than England’s 284. At present, they vastly outnumber the number of lawyers in the field, although only a relatively small number of them make a full-time living out of it.


John Hendrie, a former Premier-ship footballer and manager, now acts as a consultant to LCF Sports Law, a division of Yorkshire solicitors Last Cawthra Feather, along with another ex-player, Jim Pearson, who was later head of Nike Football for 14 years. Mr Hendrie explains that the regulations are in place to try and ensure that all agents have a good knowledge of the sport and gain an understanding of the market place.


‘However, with so many legal elements involved within contracts and merchandising, a solicitor may be better qualified than an agent to negotiate a good deal for the player,’ he says.


‘In addition, a solicitor is able to offer the player an entire package when it comes to professional advice. They can guide the player throughout their career, from signing the first contract to arranging a testimonial match. Plus, if a player gets into trouble off the pitch, the solicitor will be able to handle the case.’


And then, of course, there is commission versus hourly rate. With the former, players can end up paying over the odds the more successful they become, he says.


Stephen Lownsbrough, head of the sports law team at Last Cawthra Feather, explains that the firm acts for several high-profile players in an agency role when asked, but does not hawk them around for transfer like some traditional agents. One aspect of a solicitor’s service players particularly value, he says, is confidentiality, but he recognises that it is a hard world to break into. ‘More players are clued up, but there is still the feeling that only an agent can secure them a move,’ he says.


The involvement of former players gives law firms vital access to industry knowledge and contacts. Like all niche areas of practice, legal skills are not enough. South-west firm Clarke Willmott has former Bristol Rovers player Phil Purnell as a consultant, and partner David Powell recently acted for Mr Purnell’s one-time team-mate, Marcus Stewart, on his transfer from Sunderland to Bristol City.


Mr Powell says: ‘I thought for a long time that solicitors and accountants would take over the agent’s role, but it hasn’t happened as quickly as I thought.’


Many of the reasons for this actually reflect well on the profession, because they have to do with certain practices of the industry – agents will do what solicitors, bound by their ethical code, will not.


Also, as a breed, solicitors are not as pushy as agents, and are not prepared or able to be the general unremunerated gopher that agents can be, ensuring the player’s washing machine is fixed or that they get entrance to a particular nightclub. For the agent, this kind of work pays off when the big transfer or contract renegotiation comes around.


Mr Powell says the firm acts for 20 to 30 footballers, and as they tend to be lower-league players not on mega-wages, they prefer a percentage fee of 2% to 5%, rather than hourly rates. Negotiations can drag on, he explains, and players do not like the uncertainty of the solicitor’s meter ticking over.


But a solicitor needs to think long and hard before trying to become an agent, cautions Fraser Watson, who set up S3 Sports Management in 2003, having previously been an associate partner at Birmingham firm Wragge & Co and then in-house at General Electric.


He decided to have a go at agency work after completing a postgraduate certificate in sports law at King’s College, London. Recognising the problems of establishing himself in the field, he also set up a commercial law firm, Aldershot-based W1 Legal. However, he has become a licensed agent in case he goes into it full-time and can no longer use the lawyer exemption.


Mr Watson says he and experienced legal executive Kevin Horton, who works with him in both businesses and is also a licensed agent, have tried hard to build contacts in the football world. But it has proved extremely tough coming from a non-football background ‘with so many things to learn’ – even though one-time Arsenal manager Terry Neill joined the company late last year – and their main clients are currently two promising youngsters from Scotland and Ireland respectively.


They have had more luck representing foreign agents because of their legal qualifications. ‘It’s a reassurance because they know how devious some agents can be,’ he explains. Also, in many countries, especially the US, many agents are lawyers.


Mr Watson too has encountered the problem of the closed-shop nature of the football world. There are certain clubs, especially at the top, which require players to use particular agents.


Nonetheless, Mr Watson continues to work hard to make his name. ‘Our hope has always been that you need one or two players to kick-start things… You need a stable of players to make a living from it.’


By separating his legal and sports management businesses, Mr Watson does avoid some of the issues raised by operating an agency from within a law firm. For one thing, professional indemnity insurance will not cover non-legal work done, while there have been examples in the past of staid, largely commercial practices disliking the sight of footballers hanging around the reception area.


Some firms stick to simply doing legal work for agents and their clients – there are even tales of referral fees being involved – and according to John Hewison, senior partner at Manchester firm George Davies and long-time legal adviser to the Professional Footballers Association, problems can arise for solicitors in such situations. They have to be very clear that it is the player who is their client, not the agent, and he warns that conflicts can quickly arise.


Chris Farnell, a partner at Hill Dickinson in Manchester, has handled the legal work on a number of recent big-money transfers, such as Andy Reid from Nottingham Forest to Tottenham, and James Beattie from Southampton to Everton.


Although well placed in terms of industry knowledge – he was a youth player at Blackburn Rovers before injury ended his fledgling career at the age of 17 – Mr Farnell’s view is that lawyers are not the right people to be agents. They cannot charge for the ongoing care and attention that many players expect from their agents. ‘You have to be able to do it for every player,’ he emphasises. ‘Some agencies have 300 clients.’


There is plenty of legal work to keep lawyers happy anyway, he adds. ‘Contracts at the highest level are very complex and do need specialist advice.’


Mr Hewison adds: ‘The reality is that agency is still grey and murky waters, and lawyers are not happy fishing in those waters.’ Larger firms are nervous about it as a result – particularly as it will only ever be a niche area of practice – and because of the insurance situation. Mr Hewison says he is currently acting for a player who is suing a law firm where it is claimed a legal executive made mistakes while acting as his agent, although the advice was of a legal nature and should be covered.


One firm alive to this risk is Cardiff practice Loosemores, which last year set up LSM (Loosemores Sports Management) and has taken out separate insurance to cover its non-legal work. It acts for the Football Association of Wales and, most recently, advised Australian international Ahmad Elrich on his transfer to Fulham.


Dean Sheehan, head of the department, decided to qualify for a FIFA licence. He did so because players expect it and because the exemption for lawyers ‘doesn’t cut much ice’ with them – although he says they like the fact he has that background. The FIFA logo also looks good on the notepaper.


He concedes that ‘sports management and the law are not comfortable bedfellows’, explaining that he has had to turn away work because of ethical issues. At the same time, he extols the virtues to both players and the firm of a one-stop shop; when a player moves club, he is likely to need conveyancing services, for example.


Like the other lawyers in this field, Mr Sheehan has had to endure what he calls – with deliberate understatement – ‘imaginative and surprising’ tactics from other agents to poach his clients. But he is committed to building a stable of players and has signed up several youngsters who are at Premier League teams’ academies. They are at a stage of their career where, clearly, they cannot be charged an hourly fee, so a lot of this work is speculative. ‘We have enough high-profile clients to support what we’re doing elsewhere,’ he says. Also, even if they do not become top players, they may one day be managers or coaches. ‘It’s about protecting our reputation,’ Mr Sheehan says.


Mel Goldberg, a partner at London firm Max Bitel Greene and vice-chairman of the British Association of Sport and Law, is arguably the doyen of current solicitor-football agents. He traces his involvement back to a trip he made to watch the 1970 World Cup in Mexico, where he met many well-known figures in the game at his hotel, such as Sir Bobby Robson, Don Howe and Dave Sexton.


He acts both as an agent and for agents, and handles players’ non-contractual legal work, such as when Robbie Savage tried to challenge a suspension that ruled him out of Wales’s World Cup game against England earlier this year.


‘It’s not an easy way of making a living,’ Mr Goldberg says. ‘A lot of work doesn’t come to fruition. For every transfer you read about, 100 didn’t go through.’ He is a great believer in the marketing value of the hourly rate: ‘I’ve never understood how someone renegotiating an existing contract can ask for a £750,000 fee. I don’t know how anyone can justify such fees, have the gall to ask for them, and why clubs pay them.’


One of Mr Powell’s sports law partners at Clarke Willmott, Trevor Watkins, has seen all of this from the other side of the fence. He led the group of fans that saved League One side Bournemouth from extinction in 1997 and became the club’s chairman, standing down in 2001.


‘Both a non-lawyer agent and a lawyer are going to be looking to do the best deal for their client, but it is arguably easier dealing with someone who understands what can and cannot be done in a contract,’ he says.


However, he echoes the views of most others that the main hope for solicitors looking to increase their involvement in agency work is if the likes of FIFA and the FA actually enforce their rules – for example, agents should not act for both buying club and player, but often do.


‘We need to start at the top,’ says Mr Sheehan. ‘The FA, UEFA and FIFA need to show they mean to regulate this business properly. If clubs and players are aware that there are serious repercussions for breaking the rules, who better to interpret them than lawyers?’


But despite some positive noises in recent times, none of the solicitors is optimistic that any major shift is in the offing. ‘It is one of those areas that no one likes to talk about,’ says Mr Hewison. ‘The clubs will say agents are in many respects a necessary evil – even the ones which speak out vociferously against them.’

But when it comes down to it, you can know every legal angle to a player’s contract and have every FIFA regulation down pat, but contacts are what it is all about. ‘I can phone [Arsenal manager] Arsene Wenger on his mobile and he’ll take my call,’ says Mr Goldberg. ‘Being able to speak to them – that’s the hard part.’