Mediation in Football Agent Disputes - A 'Minefield' of Hurt, Ego’s and Resentment
27th April 2023
The disputes between football agents can be complex, long lasting and often quite vicious; yet few of these disputes even make it into the public domain. This is often due to the clandestine world in which football agents operate, where the football authorities are largely uninvolved (even unaware) of the disputes or the mere fact that a large proportion of the media are uninterested in reporting on such issues.
Afterall, so long as it isn’t the excuse for affecting the form of a superstar player, or publicly stopping a club from signing their number one target on transfer deadline day; who cares if agents are fighting. Afterall, “if one agent disappears from existence as a result of such a squabble, it is one less ‘leech’ for football to contend with” – would be the ill-informed attitude of some.
The Impact of Agent Disputes
What many fail to realise, is that disputes between agents can have a considerable effect on many other football participants and stakeholders (not just agents), whether directly or indirectly. As such, it cannot be underestimated how important it is for all involved to ensure that any such disputes between football agents are resolved as soon as possible; especially in an industry as time critical, fast-moving, competitive and lucrative as football.
‘Tapping Up’ and ‘Poaching’
I think it safe to say, that the main cause of most of the disputes between football agents, stems from the practices commonly referred to as ‘Tapping Up’ and ‘Poaching’. By this I mean the practice of an agent approaching (‘Tapping Up’) the client (e.g. a player) of another agent, with the intention of signing them as a client and taking them from the other agent (‘Poaching’).
Anyone who claims that ‘poaching’ and ‘tapping up’ do not exist in the football agency world I would say is naïve in the extreme, or should remove their ‘rose tinted glasses’ and arguably ‘seek professional help’. In fact, some (including myself) may go as far to say that such practices have become common practice in the football world, however unwelcome or undesirable they may be.
Although, quite a few agents will openly and quite blatantly undertake these practices directly; many will not, and thus use third parties to facilitate the practice, so as to ‘shield’ the agent from association, blame, and the possibility of sanctions by the football authorities.
What About the Football Agent Regulations
So, what about the football agent regulations? Surely, they put in place something to address some of these issues so as to limit the chance of inter-agent disputes. Well in print, yes, they do, and have done for many years; there have long been restrictions on how and when a licensed agent may approach the client of another agent.
Subsequently, in more recent times there have been amendments to the regulations and restrictions on approaches through ‘related 3rd parties’ in terms of practices that may be considered to be ‘tapping-up’, ‘poaching’ or related infringements. In fact, steps have been taken in more recent times, to make licensed agents (and registered intermediaries) responsible for the actions of others employed by themselves and their agencies, which infringe on agent and intermediary regulations.
In the new FIFA Football Agent Regulations (FFAR), such factors are addressed through the regulations in several areas, for example:
Article 11:
3: “A Football Agent may conduct their business affairs through an Agency. Any employees or contractors hired by the Agency that are not Football Agents may not perform Football Agent Services or make any Approach to a potential Client to enter into a Representation Agreement. A Football Agent remains fully responsible for any conduct by their Agency, its employees, contractors or other representatives should they violate these Regulations”.
Article 16:
1(b): “A Football Agent may not Approach a Client that is bound by an exclusive Representation Agreement with another Football Agent, except in the final two months of that exclusive Representation Agreement”
However, I will reserve judgement on these new agent regulations, and just how robustly and meaningfully they will be enforced by FIFA and the National Associations (FAs / MAs). Given how arguably ineffective the previous similar regulations have been over many years, it is difficult to see how effective they will be in the future under FFAR or any new regulations.
The question therefore remains; if regulations have been in place for some time, why have they (and/or the football authorities) failed to address such issues as ‘tapping up’ and ‘poaching’?
Are Agent Regulations Focussed on Solely Protecting the Sport, NOT the Agents?
This is something that has frustrated myself and others for many years, the regulations supposedly governing football agent activity (both the actions of agents AND OTHERS) have been found wanting for quite some time. Even leading in 2015, to FIFA to ‘abandoning’ the football agent regulations and the agents license; something FIFA and football as a whole have come to regret, and recently seen the announcement of the new FIFA Football Agent Regulations (FFAR) and the reintroduction of ‘Agent Licensing’.
As such, I can only really hazard a guess as to why the agent regulations have failed so dramatically. The first (in my opinion), is the lack of meaningful monitoring by the football authorities, the lack of effective enforcement of the regulations and ALSO the accountability taken by the football authorities in applying and enforcing the regulations.
Secondly, I would say that the football authorities have largely failed to undertake their ‘duty of care’ and ‘fiduciary duty’ to the licensed agents (and intermediaries) as participants, as well as others affected by agent activity. As although these regulations have been in relation to football agents and football agent activity, they have not been focussed so much on the interests of the agents themselves, but arguably focussed more on protecting the image of football.
Hence, when it comes to the grievances of agents and notably the disputes between agents, these disputes have little designated and/or realistic recourse for agents to resolve their disputes beyond ‘smoky rooms’, ‘shadowy alleyways’, golf club bars, 5-star hotel foyers and ‘under the table’ agreements.
How Do Football Agents Settle Disputes Between Themselves?
In my experience there is no clear example in which football agents resolve their disputes. Some are resolved professionally, whilst others have allegedly been quite unsavoury – and it is pretty safe to say that some disputes go unresolved and either run out of energy, or are adjudged by one party (or both) that it isn’t worth the time, effort or finances (particularly legal costs). Personally, I know of many agents who have written off thousands in often justified claims, as it is just not cost effective to pursue the dispute further with football arbitration, and litigation is arguably not permitted.
However, such disputes between agents typically share some or all of the following characteristics: complex, time-consuming, frustrating, costly, confusing, worrying ……………… all of which agents could do without when their time, effort, and attention is needed to stay competitive.
As football participants, licensed agents (intermediaries) have long been restricted by the fact that they are limited to dispute resolution mechanisms prescribed by the football authorities such as FIFA and the FA, as I wrote about in the article “Does Football Avoid ‘Airing its Dirty Washing’, with Prescribed Dispute Resolution Options?”. As such, football agents in dispute, cannot undertake typical routes of recourse such as litigation through the courts to resolve a dispute. Such mechanisms are most often costly and time consuming, making them unviable in most disputes. For example, a one-day, single arbitrator hearing will start at around £15,000 in my experience, whilst a claim of more than £50,000 through the small claims court in the UK will cost £2,500.
So with this in mind, it is clear that the most feasible route for disputes between football agents in many cases, is to; either ‘write off’ the dispute/loss, or resolve the dispute between the agents. The matter of resolving the dispute themselves is often ‘easier said than done’; given the levels of bravado, egos and the sheer competitive nature of the football agent industry. However, there is a better way that works to benefit all parties in the resolution of a football agent dispute, and that is through mediation.
Benefits of Mediation in Football Agent Disputes
As mentioned already, the typical (and prescribed) route of dispute resolution for football agents is through arbitration (such as ‘Rule K’ in England, CAS or other similar DRC and NDRC channels), however even arbitration is hugely misunderstood by many in the football world, including agents (see What Chance Has Mediation Got in Football ……. When it’s elder & stronger sibling is still misunderstood?
However, mediation does offer to agents a means of resolving their disputes in a controlled and although not a formal legal environment, mediation is underpinned somewhat by legislation and convention (if undertaken correctly). In addition to this, mediation also offers football agents many advantages over the normal football dispute resolution mechanisms and also litigation.
Financial Savings
There is little doubt that mediation is a lot cheaper than arbitration and litigation. As mentioned earlier whilst a one-day single arbitrator fee may well be in excess of £15,000, the fee for a one day mediation is typically a tenth of that (i.e. £1,500) in most cases.
Expediency
For anyone who has been through a litigation or arbitration process, they will understand the time it takes to get a ruling/judgement. Many weeks are taken even applying, then even more weeks and months of waiting to get to the point of a hearing itself, and even then, a ruling of judgement may not be immediate (further weeks or even months).
Mediation however, can be arranged and undertaken in a matter of weeks, and in some cases on urgent matters a mediation can be arranged, undertaken and concluded within days (depending on the dispute and also the availability of the disputants, their advisers and the mediators).
Confidentiality
The value of confidentiality in the football industry cannot be underestimated, and the football agent industry is no different. In fact, at times, it is worth saying agents value confidentiality more than most in the football industry (when it suits their agenda that is).
The matters of the mediation (conversations, agreements etc) remain confidential to the disputants, their advocates (where applicable) and the mediator. Nothing is divulged about the mediation outside of the mediation process, unless it is approved jointly by the disputants and in some cases also the mediator; with the only caveats being on criminal matters or safeguarding issues and concerns.
This may well have added value to agents in disputes, as they can be open and honest as to the circumstances surrounding the dispute; which may in turn result in a higher probability of a settlement of the dispute being achieved. This openness and candid approach would unlikely be possible in a formal football arbitration environment. It is quite likely that agents would not openly divulge all matters where the football authorities are present or would receive information of the arbitration, for fear of being subject to investigation or sanctions.
Flexibility
This is probably the most interesting facet of mediation when it comes to football agent disputes, and that is the flexibility that can be applied to any settlement to resolve the dispute.
Unlike in the courts or an arbitration process, the means of award or settlement are largely fixed or restricted (e.g. money or property), the settlement in mediation is only limited by the disputants (so long as it is not involve criminal conduct).
In my experience, some football agents are amongst the most ‘creative’ commercial thinkers and ‘problem solvers’, and thus I believe mediation is perfect for them is resolving disputes. However, I am reminded of many occasions where a football agent dispute has been resolved by a begrudging apology or a handshake, not least as the dispute is nothing more than a misunderstanding (often caused by a third party).
Impartiality and No Judgement Imposed
The mediator is an impartial party in the dispute, their duty in the mediation is to the process; NOT to either party, NOT to any rules/regulation and MOST IMPORTANTLY the mediator is not there to make a judgement. Whereas in an arbitration, an arbitrator (or panel) will make a judgement and apply a ruling, much like a court or judge in any litigation.
(AGENTs) Retains Control
Another key thing for many a football agent is that of ‘control’ (or at least a feeling of being in control), and this again is a key element of mediation. No party is forced to attend mediation, although not being open to mediation, may impact on the ruling in any future arbitration or litigation. So long as they undertake mediation ‘in good faith’ they can walk away from the process at any point, and a settlement cannot be imposed upon them without their agreement.
Will the Football Authorities Welcome Mediation in Football Agent Disputes?
Now this is the big question, and it is one where I have a mixed perception and conflicting feelings as to how TRULY welcoming the football authorities will be to mediation in football disputes.
Whilst FIFA in 2022/2023 developed its own mediation panel (and process), many would take it as read that the football authorities have embraced ‘mediation’. However, on further examination of FIFAs ‘mediation’ model, I have reservations about whether FIFAs perception is ‘true’ mediation and is not a form of institutional mediation, or a hybrid bordering on arbitration (med-arb or arb-med), and as such this approach to mediation by FIFA loses some key benefits of mediation in its truest and purest form (e.g confidentiality and flexibility).
With this in mind, I do believe many football authorities will be very resistant to mediation, whereby they will effectively see it as ‘losing control’, and they are not privy to all the details of the mediation.
However, taking into account that (i) mediation is a matter for solely the parties in dispute, (ii) FIFA having a mediation mechanism, (iii) The Singapore Conventions, (iv) FIFA allowing for participants to explicitly opt out of one dispute resolution mechanism in favour of another as first recourse (e.g. DRC for NDRC) …………………. Both myself and others believe there is nothing to stop football agents (and others) from resolving their disputes through independent mediation, away from the prying eyes and judgemental football authorities.
It is my opinion (and that of the legal professionals I have asked), that FIFA and the football authorities cannot declare mediation void as a means of dispute resolution for disputes between agents, either, if it is provided for as a means of resolution to parties in a contract (e.g. agent and player) or as a process subsequently agreed between the two parties in dispute, such as football agents.