從比較法觀點看我國運動經紀制度之建置──以職業棒球為核心

A Comparative Study on the Regulation of Sports Agent: Focusing on Professional Baseball Leagues

系所名稱：法律學系
學位別：碩士
畢業學年：111
指導教授：王煦棋；李志峰
職業運動因受惠於媒體化及商業化伴隨的加成作用使經濟附加價值有所提升，從而在運動產業日益步上娛樂化走向的同時，運動員此間也勢必面臨一系列場外事務的處置，惟基於各領域事項的複雜性，尚須在專業分工下委由居中媒合之管道將身價引領至檯面以開拓市場利基，緊接於複合式經營策略與市場經濟效應的交互碰撞歷程，遂誕生「運動經紀」的使用需求，轉介運動經紀人協助運動員置辦多元服務與促成契約之訂立，經由其斡旋協調後降低與資方磋商過程中的交易成本，並透過推廣行銷提供運動員對外增加曝光度之機會，將運動員之個人形象及名譽累積延伸為獨立價值型態之無形資產。
運動經紀人彰顯的市場功能及商業地位儼然成為娛樂產業內不可或缺的要素，在之中已逐步聚合成一條產業鏈，連帶衍生產業管制之探討，故先借鑑於他國運動經紀制度之指引，檢視政府在監管運動經紀業所紛呈的治理光譜，從對運動經紀人的知能運用、培訓考核、行為規制及合約執行等管理措施來剖析規範向度，於審酌職業運動領域的特殊性時，且能回應業界生態的考量訴求，評估應如何在公權力管制與產業自我約束間取得適度平衡，除避免過度干預私法上當事人自主及契約自由外，並兼顧促進市場效率及導正交易秩序，自紛繁言說中刻鏤出切合我國職業運動紋理的運動經紀制度。
而我國當前之運動經紀制度仍由產業自行規範為主軸，加上國內又以棒球運動的職業化程度最深，遂以中華職棒球員工會所推行的認證機制為濫觴，而為配合團體協約之進程，工會著手將既有制度整改，擬定《職業棒球選手經紀人規章》暨制式契約附件，預先訴諸於制式契約安排約定之內容，用以衡平職棒球員與運動經紀人雙方間之資訊不對稱；而規章則意在於建立組織內部的自我除錯機制，明定應遵守事項及行為準則，監督受認證運動經紀人的業務行為，導入風險管理意識作為期前預警手段與紀律懲戒方式，確立運動經紀人的專業責任內涵。
由於運動經紀人本於其職能優勢而得以橫亙在市場上的協商談判，惟其執行事務的方法不免為運動員徒增代理成本，接連造成之權益損害則可歸因於未忠實履行受託義務，因而針對運動經紀人從業行為所發生的不當行為或舞弊情事，亟需在運動經紀制度內植一套嚴實的內部控制及稽核制度隨時控管運動經紀人於市場准入後之執業動態，然萬變不離其宗，實施監理方針所蘊含之法理即是與《聯合國反貪腐公約》、《聯合國工商企業與人權指導原則》在私部門面向的防弊思維連結，藉由公司治理之宗旨實踐來塑造遵法風氣，調和運動經紀人在業務拓展時所潛藏的貪腐風險，強化私部門整治弊端之效用始能維繫產業的永續發展。

The commercialization and media coverage of professional sports have increased the economic value of the industry, leading to a trend of professional sports becoming more entertainment-oriented. As a result, athletes inevitably face a number of off-field issues that require professional mediation and management. Due to the complexity of various issues, it is necessary to mandate the affairs of promoting their market value to intermediaries who specialize in this field. This is how the need for a sports agency was born. Sports agents help athletes with various services and facilitate the constitution of contracts, thereby reducing transaction costs in the negotiation process with management. Through promotion and marketing, agents provide athletes with opportunities to increase their exposure, allowing the intellectual property of athletes can be created in their image and reputation.
Sports agents have become an essential element in the entertainment industry, highlighting their market function and commercial status, forming an industry chain, and leading to discussions on industry regulation. Therefore, it is necessary to refer to the guidelines of sports agency systems in other countries and examine the governance in regulating sports agencies. This includes analyzing the regulatory dimensions of managing sports agents’ knowledge utilization, training and evaluation, behavioral regulation, and performance of a contract. Given the unique characteristics of professional sports, it is important to assess how to achieve a moderate balance between government regulation and self-regulation. This not only avoids excessive interference in party autonomy and freedom of contract under private law, but also promotes market efficiency and corrects the order of transactions. Through this process, a sports agency system that fits the structure of professional sports in Taiwan can be established.
In our country, the current sports agency system is still mainly regulated by the industry itself. As the level of professionalization in baseball is the highest in Taiwan, the certification mechanism promoted by the Taiwan Professional Baseball Player Association became the starting point for reforming the existing system. In line with the progress of collective bargaining agreement, the union has begun to develop the "Regulations for Professional Baseball Player Agents" and standard form contract to address the information asymmetries between baseball players and sports agents. The regulations aim to establish a self-correcting mechanism within the organization, specify matters to be observed, supervise the business conduct of certified sports agents, import risk management awareness as a pre-warning mechanism, and establish disciplinary measures to establish the professional liabilities of sports agents.
The sports agent, due to his functional advantage, is able to negotiate and bargain in the market. However, their way of doing business inevitably increases agency costs to the athletes and leads to the damage of their rights, which can be attributed to their failure to loyalty perform their fiduciary duties. Therefore, it is urgent to establish a strict Internal Control and Internal Audit within the sports agent system to monitor the business activities of sports agents in the market after they have been certified. However, the implementation of supervisory policies includes the legal principle of anti-corruption thinking, which is linked to the United Nations Convention against Corruption and United Nations Guiding Principles on Business and Human Rights in private sector. By practicing the purpose of corporate governance, a regulatory compliance culture can be developed to mitigate the corruption risks inherent in the business expansion of sports agents and enhance the effectiveness of anti-corruption measures in private sector. Only then can the sustainable development of the industry be maintained.