Posted Tuesday 20th February 2024
Over the past dozen years, French lawyers have entered the world of sports, thanks to a special status known as “avocat mandataire sportif” (sport attorney).
The French law no. 2011-331 of March 28, 2011, on the modernization of the judicial and legal professions and certain regulated professions, amending law no. 71-1130 of December 31, 1971, on the reform of certain judicial and legal professions, established the recognition of the sport attorney.
Since March 28, 2011, it has been possible for French lawyers to “represent, as agent, one of the parties involved in the conclusion of one of the contracts mentioned in the first paragraph of Article L. 222-7 of the French Sports Code“.
The contracts covered by article L. 222-7 of the French Sports Code are those:
However, these provisions do not make the lawyer a sports agent since the nature of their missions is inherently different.
What’s more, unlike sports lawyers, sports agents, under the terms of article L. 222-7 of the French Sports Code, act as “brokers” between a sports organiser or group on the one hand, and a sportsman or woman on the other, or a sports group on the one hand, and a sportsman or woman on the other, for the conclusion of contracts covered by the aforementioned article. The activity of sports agents is therefore purely commercial and thus incompatible with the profession of lawyer.
Less regulated, the activity of a sports agent is also exercised with greater latitude than that of a sports attorney. The latter carries out his activity in compliance with the ethical rules governing his profession.
As such, a sports attorney must hold a special professional certificate “Certificat d’Aptitude à la Profession d’Avocat” and be legal specialists. They are subject to the ethical rules of the legal profession (professional secrecy etc.), which prohibits them from engaging in commercial activities (except those carried out on an ancillary basis if they are related to the legal profession). Lastly, their remuneration is limited to 10% of the amount of the contract referred to in article L. 222-7 of the French Sports Code.
However, these regulations did not hinder the development of this new activity. On the contrary, the ethical rules governing the legal profession represented a real guarantee of trust and many sportsmen and women, faced with the numerous legal and financial scandals in which sports agents were implicated, turned to sports attorneys.
Considering the success of this new activity for lawyers, and with a view to increasing the role of lawyers in the world of sports, the Paris Bar Council – by creating a new article P.6.3.0.3 – has defined the activities of sports attorneys in its internal regulations, stipulating that:
“A lawyer acting as a sports attorney may, in return for remuneration, bring together parties interested in concluding a contract either relating to the remunerated exercise of a sporting or training activity, or which provides for the conclusion of an employment contract for the remunerated exercise of a sporting or training activity.
Lawyers acting as sports attorneys may only be remunerated by their clients. This activity must give rise to a written agreement, which may, where appropriate, stipulate that the player mandates the sports club to pay the lawyer the fees corresponding to his mission in his name and on his behalf“.
With this clarification, the Paris Bar Council enabled the sports attorneys to exercise the prerogatives hitherto reserved exclusively for the sports agent, i.e. the activity of intermediation.
Losing the monopoly granted to them by article L. 222-7 of the French Sports Code, sports agents, supported by various sporting institutions (the French National Olympic and Sports Committee, the French Football Federation, the French Rugby Federation and the Union of French Sports Agents) strongly criticized this decision.
This is why the latter joined the appeal lodged by the Public Prosecutor at the Paris Court of Appeal for the annulment of the decision of the Paris Bar Council authorizing sports attorneys to carry out an activity akin to “brokerage”, which is commercial in nature.
In a ruling handed down on October 14, 2021, the Paris Court of Appeal annulled the new article P.6.3.0.3 of the Paris Bar’s internal regulations, stating that the activity of putting people in touch with each other constitutes a principal “brokerage” activity of a commercial nature, which cannot be carried out on an ancillary basis by a lawyer.
The Paris Bar Council and the Sports Attorneys Association each lodged an appeal with the French Supreme Court, putting an initial halt to the activity of sports attorneys.
In a ruling handed down on March 29, 2023, the First Civil Division of the French Supreme Court (Cour de Cassation) dismissed the appeals lodged by the Paris Bar Council and the Sports Attorneys Association against the ruling handed down on October 14, 2021, by the Paris Court of Appeal.
Confirming the position of the Paris Court of Appeal, the French Supreme Court ruled that the activity of bringing together several parties interested in concluding a contract relating to the remunerated exercise of a sporting or training activity, being a brokerage activity of a commercial nature, is reserved only for natural persons holding a sports agent’s license.
As a result, the French Supreme Court has definitively ruled that lawyers may not engage in “brokerage” activities in sporting matters and has limited the activity of the sports attorney to representing the interests of a single party involved in the conclusion of a contract relating to the remunerated exercise of a sporting or training activity. The French Supreme Court has also reiterated that a sports attorney may only be remunerated by his client.
Consequently, the new article P.6.3.0.3 of the internal rules of the Paris Bar is annulled insofar as (i) the activity provided for in its first paragraph is incompatible with the exercise of the profession of lawyer, and (ii) it is not possible for the sportsman or sportswoman to mandate the sports club to pay, in his or her name and on his or her behalf, the fees corresponding to his or her mission.
This decision thus represents a victory for sports agents in France, and in a way, the final whistle for the development of the activity of sports attorney “avocat mandataire sportif“, since under the terms of this decision, sports agents retain their monopoly on the intermediation activity, and find themselves sheltered from competition from lawyers, which they considered unfair.
Finally, this decision unfortunately puts the brakes on the moralisation of the sports sector undertaken by the French legislator in 2011, notably to enable lawyers to provide their legal expertise together with their controlled professional probity.
This article was written by Olivier Boyer, DMMS & Associés.
This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.
