It is now generally accepted by athletes and teams alike that a player won’t negotiate their own contract.  This is a far cry from the days when a player was traded before a team manager would deal with a sports agent.

The role of sports agent is primarily devoted to negotiating sports contracts, but inevitably overlaps into various other areas including legal advice.  However, the need for specialised independent legal advice in certain situations cannot be overstated.

Given the size of New Zealand and the specialist nature of the role is it is relatively common for a sports agent to represent more than one player from the same team.  This can give rise to a conflict of interest as it is not unusual for an agent to be negotiating multiple contracts (for multiple clients) from the same team management.  As a result a player can suddenly find themselves at a distinct disadvantage.

The relative size of our industry makes it foreseeable that an agent might be placed in a position where he or she compromises the demands of one client in order to seek a more favourable contract for another.  It might also be possible to use the bargaining power of one client to improve the negotiating position of the other client.  Whether it’s done consciously or sub-consciously, the result is the same – one client’s interests can be favoured over the interests of the other.  This position is even more concerning in situations where a team or sport is subject to a salary cap.  In such circumstances athletes are dividing a fixed amount of money.

Take Joe.  Joe plays for the BCs and is represented by a leading sports agent.  However, so are a number of other athletes on his team.  This has sometimes worked in Joe’s favour because of the leverage that can result from his agent having larger negotiating power with team management.  However, at salary negotiations with team management this year Joe’s agent was told that salaries had been capped.  This meant Joe’s agent had to get the best salaries he could for Joe and his three other clients, from the same pool of money.  In this situation is it possible for Joe’s agent to put Joe’s interests above all his other clients?  Isn’t Joe’s agent more likely to try to reach the most amenable arrangement for all of his four clients?

To further complicate matters, a sports agent might represent both players and the coach of the same team.  Coaches often naturally take an active role in the personnel decisions made by management and so often align themselves with management.  This might see your agent subconsciously seeking a lesser salary or incentives for you, in favour of your coach’s interests.

Individual sports people are not immune. New Zealand is a small country and the corporate sponsorship pool is finite. Your agent might be representing you and others at the negotiation table of a major sponsor, and again may consciously or subconsciously favour the interests of another client over you.

Protecting yourself from these types of situation can start with your contract with your agent. Consult your lawyer to ensure that adequate contractual obligations are put in place to protect yourself from these types of conflicts of interest. While it might be difficult to seek a complete bar on the representation of similar sports-people by your agent, watered-down versions can go some way to protecting your future interests. At the very least you should negotiate an obligation on the part of your agent to disclose any conflicts as they arise.

Even if you do not have these types of protections in your contract, the relationship between a player and their agent itself can give rise to enforceable obligations.

These are called fiduciary obligations. Put simply, these are obligations of loyalty. They arise because of the nature of the relationship between you and your agent and the extent of your reliance on them to act in your best interests. Even without a written contract, your agent has an enforceable obligation to work for and with you to achieve a common objective that is the best outcome for you. Your agent can’t do that effectively when they represent others with similar objectives and aspirations, because they owe the same obligations to those people. And therein lies the conflict.

Here are five hot tips to help minimise the chances of being compromised at the hands of your agent:

Hot Tips:

1. Involve your lawyer before you sign with an agent to ensure your interests are protected.
2. Be aware of who else your agent represents – sports players and management.
3. If you are involved in a team sport, avoid sharing an agent with others in your team if possible.
4. If applying for individual corporate sponsorship find out as much about the organisation and their sponsorship as possible, including the range of sportspeople who can apply. If your agent represents others who fit the criteria seek independent advice.
5. Seek independent legal advice about any major decisions involving your future.

We list below some ways to avoid the terrible mistake of inadvertently taking a banned substance.

1. You should always explain your sporting involvement to your Doctor or Pharmacist so they are aware of it when they prescribe or dispense medications.
2. Be aware of prohibited substances.  A list of prohibited substances is now available on the New Zealand Sports Drug Agency website www.drugfreesport.org.nz 
3. Check the requirements of your sport’s National Federation.
4. Be aware that medications and/or supplements can contain prohibited substances even if they are not on the label.
5. Avoid any supplements that claim you can lose weight quickly or bulk up quickly as these will often contain stimulants (weight reduction) or anabolic agents (bulk producing).
6. Contact the New Zealand Sports Drug Agency hotline on 0800 378 437, or fill out their online form.  With prescription drugs they can tell you exactly whether they contain any banned substance.  For supplements they can tell you whether any of the listed ingredients are on the banned list.

The recent case of three time Tour de France winner Alberto Contador is a good example of how athletes should remain vigilant about what they consume.  Contador was cleared of drug allegations after a miniscule amount of a banned substance was found in his system during tests. He claimed the substance was consumed after his food was contaminated. 

The inadvertent consumption of banned drugs in over the counter and prescription medications, and in other situations, is an increasing possibility.  The consequences of inadvertently taking a banned substance can be severe.

The New Zealand Sports Drug Agency was established to oversee the testing of athletes and to determine whether an athlete has taken a banned substance.  Where a positive determination is made the relevant National Sporting Organisation is notified.  The allegation is then referred to the Sport’s Tribunal or the relevant National Sporting Organisations equivalent.

The grounds for appealing a decision of the New Zealand Sports Drug Agency are very limited and therefore great care should be taken before taking any substance which could be banned.