Could the New FIFA Football Agent Regulations prove to be FIFA's ‘Achilles Heel’?
9th April 2023
With the challenges to FIFAs new Football Agent Regulations (FFAR) mounting around the world from various individuals and agents; there is little doubt that the negative impact of these regulations on various football participants and football stakeholders has been well publicised. Whilst a few may benefit from the FFAR, in my opinion far more will be disadvantaged and hampered, for something that is supposedly for the benefit of football.
However, for this article I wanted to pose the question “How will these regulations impact on FIFA”? and “will it ultimately prove to be FIFA’s Achille’s heel”?
For those unaware of Achilles, he was a warrior of Greek mythology, supposedly invulnerable on all parts of his body to attack until his one vulnerability was identified as his “Achilles heel”, which (by some accounts) when struck by a lone arrow led to his demise.
Although some may shudder at the thought of the likening of FIFA to a strong, courageous and loyal hero such as Achilles, they may seemingly prefer to align FIFA more closely with the Black Knight from the film ‘Monty Python and The Holy Grail’ . Being obstructive, constantly picking fights, under attack and crying ‘tis but a scratch’ (despite suffering increasingly serious wounding).
The Long Running Skirmish(es) Between FIFA and Football Agents
In effect the ongoing discussions, objections, arguments and criticisms (which I will collectively refer to as ‘skirmishes’) between FIFA and football agents (either individually or as groups), have been ongoing since around 2018, when FIFA first presented the foundations of the new FIFA Football Agent Regulations (FFAR) to a selected group of alleged registered agents/intermediaries.
Since then, the debate and objections have seemingly got more heated, and the approval of the new regulations by FIFA in Doha in December 2022 (with the implementation of the disputed regulations in 2023) inevitably triggered numerous legal challenges around the world and in various courts (including CAS – The Court of Arbitration for Sport) from different agents and agent groups.
Whilst people (myself included) have varying opinions on the cases brought about in challenging the FFAR, and the merits and weaknesses in the various arguments and complaints, I think it is fair to say that no-one really knows what the actual outcome will be from the 5 year wait. The arguments over FFAR have at times descended into farce, based on the actions and comments of some on both sides.
Whether it be those with a very subjective opinion of the dispute, a more pragmatic knowledge of the history of football agent regulations or even possess legal expertise to provide an objective assessment of the arguments; many are understandably reluctant to offer a decisive conclusion as to how things will pan out with regards to the dispute over FFAR.
However, even as a ‘legal-muggle’ I think I can offer some general opinions as to how I think this will all pan out ………. needless to say, I don’t think it will be a happy ending, albeit with just a very very slight ‘glimmer of hope’.
A Globally ‘Fractured’ and ‘Disjointed’ System of Football Agent Regulation
It is fair to say that given the cultural, political and financial differences around the world; that not every court in which the FFAR are to be challenged will arrive at the same conclusions or judgement.
Some may uphold one argument, whereas others may dismiss the same argument. And it is not impossible, that somewhere a court may uphold the FFAR as a whole, whereas another may do exactly the opposite.
The problem with this is that there will effectively be an inconsistent and conflicting set of regulations around the world. Further complicated by the fact that different regulations will apply to transactions of a national dimension, to those of an international dimension.
Whether it be players, clubs, agents, associations or even FIFA – this situation is far from advantageous, and in my opinion will just lead to a system mired in confusion and disputes, that is ultimately being damaging to most, if not all in football.
Retain Regulations that Most (if not all) Agree are Flawed and Unfit for Purpose
In the unlikely event that there is either a ruling by all the courts that either; the FFAR are unenforceable, CAS rejects the FFAR as unworkable or even that FIFA ‘back-down’ or delay the implementation of the FFAR (for further consultation – as some agent groups are demanding), then this is arguably not the worst situation.
However, if after 5 years of confusion and impasse over the FFAR, all that is achieved is yet another delay, it leaves the football industry with the 2015 FIFA Regulations on Working With Intermediaries (RWWI), and thus how long will the football industry be left to further suffer the damage of RWWI.
I think it safe to say that both sides in the dispute over FFAR can actually agree on one thing; that the RWWI was a mistake, is flawed and overall unfit for purpose (as was the warning prior to their introduction in 2015).
Mediation and/or Parties Come to Their Senses
Now, if you ‘bear with me’ one second, I will don my ‘rose tinted spectacles’, and try to be optimistic even in this situation. Even the most optimistic may have trouble in finding any ‘silver lining’ in this dispute, especially when we consider how the parties have acted towards each other at times.
There is a remote possibility that the parties in the dispute will to an extent, ‘come to their senses’ (but I wont be holding my breath), to put ego’s, bravado, politics, vendettas and agendas to one side and try and find that ‘middle ground’, if only to save time, money and look after the best interests of the football community as a whole.
As I wrote in a previous article (‘Could Litigation in the Dispute(s) Between FIFA and Football Agents Over New Agent Regulations be Avoided with Mediation?’), I believe ‘mediation’ may hold the key in this dispute, and given that mediation is now allegedly a key foundation of FIFAs new ‘Football Tribunal’, the concept and acceptance of the benefits of mediation SHOULD NOT be lost on FIFA.
Mediation would allow for the agent groups to be heard in a confidential manner that is ‘without prejudice’, thus does not jeopardise their rights to further their argument that: ‘FIFA has not included them in meaningful consultation’ over the FFAR. Likewise, mediation would allow for FIFA to be heard and possibly reach a ‘middle-ground’ that meets their aim in FIFAs 2020-2023 ‘vision’, to “modernise the football regulatory framework” and doesn’t risk the perception of ‘backing-down’.
Probably the most telling and valuable tool in this arena and the potential grounds for resolution to the dispute, is that of confidentiality and the ability for both sides to reach agreement in a way that isn’t seen to be ‘backing down’ or ‘losing face’. There are no ‘losers’ in a successful football mediation, just a mutually satisfactory score draw, and the ability to move forward rather than be distracted and mired in a dispute (not least one that has ‘rumbled on’ for 5 years and increasing).
CAS (Court of Arbitration for Sport) to the Rescue?
There has been quite a bit of criticism regarding the complaint that one agent organisation (PROFAA) has reportedly lodged with CAS. Some may argue that because CAS is largely reliant on FIFA for many of its cases (and subsequent funding), it is viewed by some as pro-FIFA. Whilst others think, PROFAAs complaint will undermine the cases lodged elsewhere by other agents and agent group in more traditional courts of law. And whilst this is a debate (or feud) I am not going to get embroiled in as I am not legally qualified to do so, I am however allowed an opinion, as is everyone else.
The hope for me, is that CAS is indeed the ‘voice of sense and reason’ in the FFAR dispute. They will objectively highlight the flaws in the FFAR, and advise FIFA to remove and revise certain elements if deemed unfair or unfeasible, if not unlawful. This in itself may even provide FIFA with the option it may secretly want (but won’t say), in being able to carefully ‘back-away’ from the more contentious issues in the FFAR (e.g. ‘capping‘ of agent commissions) that are ultimately the foundations of this dispute.
Who knows, there may even be an initial ruling by CAS that FIFA must attempt mediation with the disputant parties, to try and find a resolution.
So, could this be FIFAs ‘Achilles Heel’?
With all this is mind, and all the possible permutations and outcomes (if only in my opinion), where does it leave FIFA?
Whilst ‘agent regulations’ is a relatively small issue in the footballing world; neither exciting or one that has garnered much media attention when compared to things like the FIFA World Cup, Financial Fair Play or the latest FIFA sponsorship deal, I do believe that potential for substantial damage to FIFAs brand, authority and legitimacy can occur. Whether on the basis of the number of complaints being heard, the number of territories/courts in which the cases are to be heard and also some of the questionable measures that FIFA are trying to impose with the FFAR; that are arguably unlawful.
Questions Over FIFA's Legitimacy to Regulate Agents
For one, I don’t give much credence to the criticism and questions raised by some in the football agent community as to FIFAs legitimacy in regulating agents (or football as a whole). From my own perspective a lot of the anti-FIFA rhetoric and narrative is just ‘rabble rousing’ based on personal agendas, bravado, rebellion, vendettas, personal grievances and ill feeling.
The notion that agents can regulate themselves is simply a ‘non-starter’ for me at the moment. There has never been any evidence that agents can effectively organise themselves as a stakeholder, let alone legitimately regulate themselves (see Why haven’t football agents got a credible and legitimate voice as a football stakeholder?). Although there are big questions over potential conflicts of interest in FIFA regulating football as a business entity, I agree that the commercial interests and governance/regulatory interests of sports governing bodies should be separate. It is justifiable to point out:
(1) many leagues, national associations, sport governing bodies, and even agent organisations are structured in a similar way to other companies and business entities.
(2) whilst some may still look at FIFA with suspicion based on past misdemeanours, there is no World Governing Body ready to be ‘plucked from the shelf’ to regulate football or football agents. And with that in mind you don’t have to look far for other sports governing bodies who are subject to criticism and accusation over the years.
The ‘Uneasy’ Relationship Between FIFA and UEFA
Over the last couple of years, it is justifiable to say that the relationship between FIFA and UEFA is seemingly ‘uneasy’, if not ‘strained’ – whether this be commercial or political. And whilst UEFA have, to my knowledge, never expressed interest or shown any intent in regulating football agents, there was a slight shift in the last year when the dispute between FIFA and the agents over FFAR started to gain momentum.
Somewhat by ‘coincidence’, as FIFA launched their inaugural ‘Executive Programme in Football Agency’, UEFA launched their own ‘Player Agent Programme (PAP)’ . Was it coincidence? Or might it be perceived by some as profiteering from the uncertainty amongst agents and intermediaries or political jostling to get into pole-position should FFAR be scrapped?
Personally, I wouldn’t welcome the prospect of UEFA regulating football agents, at this point in time, and it would arguably complicate matters yet further, with not only a domestic and international level of agent regulations to contend with, but then a (con)federation dimension as well.
This is all despite the fact that I acknowledge UEFA has arguably the most profitable and successful leagues in the world, the most professional clubs, the highest transfer fees and revenues, the most professional players, and also the most agents/intermediaries and highest agent fees – this for me does not legitimise UEFA regulating football agents.
‘Government Intervention’ and National Laws
Probably the one aspect that FIFA are ‘wary of’ (I wouldn’t say ‘fear’), is the challenge posed by ‘government intervention’ in football matters, and the possibility of implementation of national legislation that undermines FIFAs regulations. For a significant amount of time the FIFA regulations have dissuaded governments from interfering in football matters. This has been reinforced by the threat of possibly losing the opportunity to host the World Cup, loss of FIFA funding, or the suspension of the National Football team should there be ‘Political Interference’ in football.
However, it seems that the ‘tide may be turning’ on such aspects, and the troubles of 2015 that beset FIFA (under their previous regime) may have emboldened governments to ‘push the boundaries’. The most recent sign of which was the announcement of an ‘Independent Football Regulator’ in the United Kingdom – although from reviewing the documents and monitoring the discussions over the years; agent regulations at this point, aren’t part of the regulators remit.
Yet, two of the most telling steps where governments have intervened in FIFA football governance matters, are both in relation to agent regulations and it is reasonable to conclude that both were triggered by the inadequate FIFA RWWI of 2015.
Thus, in 2015 the French authorities rejected FIFAs RWWI almost immediately and didn’t recognise ‘Intermediaries’, subsequently making the profession of football agent subject to national legislation. Thereafter in 2017, the Italian authorities announced their intention to implement their own national legislation governing the regulation and licensing of football agents. Most notable is the fact that much of the lobbying on this matter for more robust football agent regulation was actually undertaken by the agents themselves and the Italian agent associations of IAFA and AIACS.
In Summary
In all honesty, I don’t think the problems over the FFAR will bring the ‘house of cards’ at FIFA ‘crashing down’, although, I do maintain it could lead to further scrutiny of FIFA, if not inflict serious damage to FIFAs already tarnished reputation, authority and standing.
This risk could largely be avoided by FIFA, through some pragmatic concessions, albeit that this may have to be brought about indirectly from the actions of others (e.g. CAS). However, I maintain that if FIFA press on in this dispute, with the same attitude that was seemingly presented in the years straight after 2018, and demonstrate little sign of compromise on the key issues in the FFAR, that are causing so much objection and consternation – the dispute over FFAR could well prove to be FIFA’s ‘Achilles Heel’.