How Could Football Agent Regulations (even FFAR) Be ‘Sold’ to the Agents?
6th May 2023
As I have always stated, I do not profess to have all of the answers to the problems and issues surrounding the football agent industry, in fact I doubt anyone does have all the answers, or will have any time soon.
At the time of writing (3rd May 2023), ‘battle lines’ are very much drawn by various agents and agent groups in their objections and legal challenges to the new FIFA Football Agent Regulations (FFAR). Yet, this was the case in 2015 with FIFAs ‘Regulations on Working with Intermediaries’ (RWWI), so is this just Deja Vu or has the agent industry and the football authorities learned anything or evolved (in terms of regulations) in that time?
Failure, Resentment & Ridicule of Football Agent Regulations
For me, there are two key factors in the failure to effectively regulate the football agent industry. The first is the failure of the regulations to evolve at the same rate as the football agent industry itself. The second is the matter of largely ineffective enforcement of such regulations; and the seeming inability and indisposed nature of the football authorities to tackle the issue effectively, fairly and consistently, both domestically and internationally.
Subsequently, this has resulted in a growing level of ignorance and resentment towards the regulations and the football authorities, if not even encouraged some licensed agents to go unlicensed or breach the agent regulations as it will save them time, money and make life less complicated with little or no consequence.
So, whilst FIFA’s new FFAR (FIFA Football Agent Regulations) has drawn considerable criticism, resentment and legal challenges from many in the football agent community. How could football agent regulations and licensing effectively be ‘sold’ to football agents as a positive thing and something to embrace rather than reject, object to and rally against?
< 1 > A Representative Voice & Stakeholder Status for Agents
Whilst FIFA may well argue that the AWG (Agent Working Group) as part of the new FFAR does offer a representative voice for agents; to many, the AWG in its current form is considered to be a voice that is neither representative, nor one that FIFA and others will have to listen to (let alone hear), not least because the AWG seemingly has very little (if any) power or jurisdiction. – see ‘FIFAs Agent Working Group – Right Thing, Right Place, Wrong Time?’
The matter of a truly representative body and association for football agents is a topic that particularly frustrates, rankles, if not infuriates and saddens me (as I wrote about in the article : ‘Why haven’t football agents got a credible and legitimate voice as a football stakeholder?)’.
As one of my friends (and a valued mentor) Mel Stein used to say on the matter:
, and although I didn’t always agree with Mel in terms of the context in which he sometimes used the phrase, the phrase itself applies very much here.
A professional and truly representative body for licensed football agents (as stakeholders) akin to FIFPro, ECA etc, is something I believe can easily be done, with the willing and resolve of key people involved in football. However, it is apparent that there seems to be protagonists in many of footballs different stakeholder groups (including the agents and FIFA) who are seemingly unwilling to put in any effort to establish a truly representative voice/body for licensed football agents …….. if only to seemingly suit their own agendas.
< 2 > Agents as Football Creditors
A lot is made of the amount of commissions paid to agents, in fact some within FIFA have established it as the key justification for the cap on agent commissions/remunerations within the FFAR (a matter I have covered at length in how it is unjustified in the vast majority of cases, and a policy to garner populist support and political points scoring rather than a valid argument).
However, what is not realised by many (or ignored by some), is the amount of commissions that go unpaid to agents for work they have legitimately undertaken (i.e. for clubs and players) particularly at the lower levels of the industry. And that there is little or no protection in place for licensed agents as creditors, unlike other football participants such as clubs and players.
Until relatively recently, the ability for the football authorities to adequately protect the legitimate earnings of players was not in place, and in a similar way, the means to protect the rightful compensation of clubs for the development of players was limited. However, with the introduction of technology, FIFA and the football authorities now have more resources at hand to adequately protect the rightful earnings of players, clubs and coaches/managers through such systems as the Transfer Matching System (TMS), and the related domestic systems (DTMS).
Is it not too much to ask, that similar protection of the rightful and legitimate earnings of licensed agents (as stakeholders) is also now a realistic possibility, in a similar way to the protection afforded to clubs, players, managers and coaches to sums that they are rightly due?
With this in mind, almost coinciding with the introduction of the FFAR has seen the launch of the FIFA Clearing House (FCH) in ensuring international payments between football participants (e.g. transfer fees, agent commissions, training compensation, solidarity payments) are tracked, and that all parties are remunerated fairly and appropriately. (Note: at the time of writing May’23 there is no confirmed date for the FCH to process agent payments).
Whilst there is a very vocal (if not overly ‘loud’) contingent of agents who object to the FCH, I can personally see a huge benefit to this system for licensed agents. If the FCH is operated efficiently and fairly, unlike the Clearing House operated in England by The FA for many years which is seen as slow and flawed (if not challenged as an illegal banking facility by some), the FCH is arguably a step in the right direction. Whilst the FCH at some yet undefined point in the future only handle agent payments in regards to transactions of an international dimension, I personally could see agents ‘opting in’ to the FCH for not only their commissions relating to international affairs but also give permission for it to also handle their rightful commissions due on domestic transactions, if it meant the agent commissions they were rightly due, are protected.
Furthermore, if the commissions that are legitimately due to agents were underwritten by either the interest earned on the moneys handled by the FCH and/or even by insurance, it would again be a major selling point to agents. This in turn would not only help agents and encourage them to be part of a licensing system, but also help FIFA towards its well-publicised goal of financial transparency across all of football.
< 3 > Agent Solidarity & Compensation
Taking into account a second justification (or excuse) of some at FIFA for the imposition of the cap on agent commissions as part of the new FFAR; is the disparity between the rise in agents fees over many years compared to the (largely unrelated) training compensation and solidarity mechanism?
This subsequently leads to another concept that I believe would also be a big ‘selling point’ to a vast majority of licensed agents, in the form of a solidarity/compensation mechanism for agents; operating in a similar vein to that of the FIFA Training Compensation and Solidarity mechanisms for clubs.
In correlation with such systems as the FCH, TMS, D-TMS etc; if a solidarity mechanism was in place for agents guaranteeing them a small proportion of legitimate agent commissions over the years of the players career (i.e. processed through the FCH), would not only safeguard the agent’s efforts for their role as the agent in the developmental years of players, but also encourage them to opt-in to effective regulations.
There is no getting away from the fact that agents openly accept the chance of losing a young footballer client to a larger (or more ‘persuasive’) agent/agency when the player starts to mature and show promise, is very high (if not inevitable). As such, many agents don’t invest as much time in young players as they would like to, or young players are effectively ‘hoovered’ up by ‘club-preferred’ agents/agencies as a ‘batch’, in the hope that one or more of them ‘make it’ as professionals. Whilst this may not be detrimental to the player(s) who ‘makes it’, it does however mean that the duty of care afforded to the group of players (and their families) is likely diluted.
A solidarity/compensation mechanism for agents would thus encourage licensed agents to invest more time in helping young players during their formative years (as well as players at a lower level of football), with the understanding that should that player be a successful professional footballer later in their career yet move to other agents/agencies, the original agent is still rewarded for their time, effort and contribution towards the players success.
< 4 > Easier Dispute Resolution
One of the biggest frustrations for many agents (and other football participants for that matter) is that when they are in dispute with another football participant, they have to seemingly undertake the dispute resolution mechanisms that are prescribed by FIFA or the National Football/Member Associations (MAs). The time, complexity and cost of such mechanisms has the potential to leave many disputes unresolved, thus having a detrimental effect on the sport and various football participants and stakeholders involved either directly or indirectly.
Whilst I openly accept that in the last year or so, FIFA have attempted to evolve and streamline the disciplinary and disputes process with the ‘Football Tribunal’ (FT) of which the ‘Agents Chamber‘ (AC) is one of three chambers solely established for agent related matters, there is still a long way to go in terms of streamlining the disputes process.
As such, I am of the belief that agents (and other football participants) should be permitted to take their dispute to any recognised dispute resolution mechanism outside of the FIFA (and football) regulatory framework; and this should be at the sole discretion of those in dispute; whether it be litigation, arbitration or football mediation. This again, I believe should be another ‘selling point’ for agents in being able to resolve disputes expediently.
< 5 > Making Other Football Participants Accountable
When it comes to the sanctions and the enforcement of the regulations relating to football agent activity, many would say (myself included) that this is the root cause of why ‘football agent regulations’ have largely failed over many years.
As I have written and spoken about many times before, it is quite often the case that the ‘rewards far outweigh the risks’ for agents to bend the rules (if not break them), and even operate unlicensed. The agent regulations past, present and possibly future are often largely ineffective in regulating both agents and other football participants (e.g., players, coaches and clubs), for just this reason.
Whilst FIFA and other national football authorities may well argue that they do act on agent regulatory breaches, it is questionable as to whether they do enough, whether they apply them consistently or whether the sanctions are enough of a deterrent.
Whilst the comment I have heard many a time, over many years (and infuriates just as much today, as at any point in the past) from Football Association (The FA) representatives in England is that:
……. this is a large factor as to why the regulation of football agents has failed. And as I have pointed out on many an occasion, this is not a valid reason for not addressing the activities of unlicensed football agents.
As such, it is my firm belief that this is another ‘selling point’ to licensed agents with effective regulations, that has been blazingly obvious to the likes of FIFA and the other football authorities for many years, yet this has seemingly been largely ignored.
Football Agent regulations for as long as I can remember have made it clear that it is unlawful for football participants (e.g., players, clubs, managers/coaches, licensed agents) to engage with unlicensed agents – so why does the problem persist?
It doesn’t take a ‘rocket scientist’ to answer this question, because if we look at the sanctions levied against those football participants who engage with unlicensed football agents, the sanctions are infrequent, inconsistent and don’t act as a deterrent to either the unlicensed agents or the football participant – if any action is taken at all by the authorities.
Subsequently, the failure to act on the actions involving unlicensed agents is again disconcerting to licensed agents, and arguably puts them at a disadvantage for being licensed. As such, by FIFA and others demonstrating that they are more proactive in tackling engagement with unlicensed agents by football participants with widespread action and meaningful sanctions, this would afford licensed agents some form of protection and benefit in being licensed.
In Summary
These are just a few of the concepts that I believe may sell the concept of effective regulation of the football agent industry and licensing by FIFA; even to the most intransigent and ardent anti-FIFA agents.
There needs to be more ‘give and take’ between the football authorities (including FIFA) and the football agents (as stakeholders), as in the end, poor regulation or a lack of regulation does not benefit the licensed agents, FIFA and the football authorities or indeed football as a whole.