Dispute over Jakub Kaminski, which agency can represent Lech Poznan player?

Will Jakub Kamiński break Jakub Moder’s transfer record?

Jakub Kaminski and Kacper Kozlowski are the players with by far the biggest transfer potential among the Poles currently playing in PKO Ekstraklasa. Kaminski is having a very successful season at the moment, with 5 goals and 4 assists in 13 games, and his value on the popular online portal transfermarkt is constantly rising, currently around €6 million . However, it does not seem that he will be sold for this price. According to media reports, at the beginning of August Lech rejected an offer from Wolfsburg for 7 million Euros and later another for around 8-9 million Euros . By refusing to sell the player in the summer transfer window, Lech Poznan have sent a clear message to their fans and rivals that the priority for the club’s centenary year is to win the Polish championship. If the player maintains his current form and no serious injuries happen to him, a transfer after the season seems inevitable. Everything also suggests that a new record could be set for the amount of money paid by a Polish club for a transfer of a player from the Ekstraklasa. The previous one was also set by Lech Poznan on the occasion of the sale of Moder to Brighton.

ProSport or BMG Sport, who represents Jakub Kaminski?

In connection with the information published on October 27, 2021 on Twitter by the agency „ProSport Manager Marcin Lewicki”, a dispute that arose between the aforementioned agency and „Bartłomiej Bolek BMG Sport” came to light . According to Marcin Lewicki, he is the only agent authorised to represent Jakub Kamiński’s interests, including conducting talks on his behalf concerning the transfer of the player. In its post, ProSport also presented a picture of a letter received from PZPN (Polish Football Association), which confirms their position. On 29 October, BMG Sport spoke out, claiming that the agency contract between ProSport and Jakub Kaminski was terminated by a letter dated 4 February 2021, of which the agent and PZPN were informed. The player was then to sign a contract with BMG Sport. The player himself also confirmed in social media, the version of events presented by BMG Sport . So who can actually represent Jakub Kaminski at the moment? According to some commentators, the letter from the Polish Football Association confirms that Marcin Lewicki is right. But is this really the case? What is the nature of the PZPN’s letter and how should it be interpreted?

Has PZPN taken a stand in the dispute over Jakub Kaminski?

In a letter dated 27 October 2021, the PZPN’s Domestic Competitions Department indicated that Marcin Lewicki had entered into an agency agreement with Jakub Kaminski on September 3, 2020, under which the parties had agreed to cooperate for a period of 4 years, i.e. until September 2, 2024. We further read that the agreement met all formal requirements and therefore Mr Marcin Lewicki was registered as an agent authorized to represent the player. The PZPN also informed that BMG Sport had twice tried to register its contract with Jakub Kamiński in the relevant PZPN register but had been refused, i.e. the contract between BMG Sport and Jakub Kamiński had not been registered with the PZPN. However, the Domestic Competitions Department did not explicitly state why the aforementioned agreement was not registered.

At the same time, the letter contains an important disclaimer which has gone unnoticed by many commentators. The PZPN indicates that the contract between ProSport and Jakub Kaminski is binding if it has not been terminated after October 3, 2020. According to BMG Sport, however, the termination occurred in February 2021.

Why did the PZPN refuse to register the contract with BMG Sport?

In 2015, there was a significant deregulation of the football agent profession at international and national levels. An expression of the changes introduced was the adoption by the Board of the Polish Football Association of a Resolution on cooperation with transaction agents (hereinafter the Resolution) . The Resolution abandoned the verification of competences and the issuing of licences to football agents in favour of keeping only a register of agents, referred to after the aforementioned deregulation as transaction intermediaries. In order to operate as a transaction agent, it is now only necessary to obtain an entry in the register system maintained by the PZPN’s Domestic Competitions Department and to take out third-party insurance. The said register keeps a record of agents and activities undertaken  by them; contracts concluded with players or clubs and transactions concluded with their participation, transfer agreements and contracts signed.

According to Article 4(7):

„„After concluding the Agency Agreement, the Agent shall, within 3 days, but no later than the date of conclusion of the contract or transfer agreement, enter it into the Registration System under pain of being ineffective against PZPN and send its original by registered mail to PZPN.”

In Jakub Kaminski’s case, the PZPN’s Domestic Competitions Department refused to register the contract. If BMG Sport fails to register Jakub Kaminski’s contract by the date he enters into a new contract with the club or transfer agreement, in the eyes of the PZPN the contract between the new agency and the player will be ineffective. The ineffectiveness of the contract does not, however, mean that it is invalid. The BMG Sport contract can be valid while being ineffective in the eyes of PZPN. This means that any authorities or courts acting with the PZPN should treat it as non-existent.

Who will actually represent Jakub Kaminski in the transfer case?

On the basis of general provisions of civil law, it is assumed that an agency agreement is a contract of trust. This means that the parties to such contract should behave loyally towards each other. From the publicly available information, it is impossible to clearly assess the circumstances under which Jakub Kamiński changed agencies. However, the athlete himself confirmed that he made a decision to terminate his cooperation with ProSport and establish a new one with BMG Sport and it should be expected that the last agency will act on his behalf. Due to the trust that should exist between the principal and the agent, a player cannot be forced to work with an agent he does not want to. However, the player may face financial consequences in the future. Marcin Lewicki can demand compensation in the amount of the commission that Jakub Kamiński would have earned on the transfer in connection with the representation of his interests. Additionally, the player himself, BMG Sport and Kaminski’s future club may face disciplinary consequences for acting with an agent who does not have a registered contract with the association. This may be further complicated by future events. The transfer will probably be international and BMG Sport may try to register the contract in the home federation of Kaminski’s future club, e.g. in Germany. Additionally, with transfers of this type the payer of the commission connected with the transfer of the player is usually the player’s new club and Bartłomiej Bolek can officially act on the basis of such a contract.  Further action by the parties may therefore affect whether or not disciplinary liability arises.

The key to determining the consequences of a „change of agency” will be whether the notice of termination dated February 4, 2021 was given for legitimate reasons. For example, whether ProSport engaged in conduct or negligence that objectively justified a loss of confidence on the part of the player and termination of the contract.

Crucially, it is for the court to resolve these doubts and not for the PZPN’s Domestic Competitions Department. Nor does it appear from PZPN’s letter that the Competitions Department has ruled on the effectiveness or validity of any termination of the player’s contract. The said authority only confirmed the formal circumstances concerning the register kept by it, i.e. that one contract was registered and the other was not. If the parties fail to resolve the matter amicably, it will probably end up in court, as the letter from PZPN’s Domestic Competitions Department alone does not resolve the doubts surrounding the matter.