FIFA's Temporary and Partial Suspension of FFAR Leads to Yet More Confusion and Potential Disputes
Fractured Football Agent Regulations Will End in Disputes That Should Be Resolved Through Mediation
31st December 2023
Following a year of confusion since the new FIFA Football Agent Regulations were approved (December 2022), and several years of disputes and acrimony over the new regulations prior to that, I have already commented that we are heading into turbulent times when it comes to disputes relating to football agents.
Hence, in the last few days with FIFA ‘throwing yet another hand-grenade’ into the already fractured and confused agent regulatory landscape, with circular 1873 announcing on 30th December 2023; the temporary suspension of several aspects of the FFAR worldwide – this will no doubt further exacerbate problems and confusion for many in the footballing world not least agents and their clients (i.e. players, clubs, managers/coaches).
The 'Suspension' of FIFA Football Agent Regulations (FFAR) is Open to Varying Interpretation and Misinterpretation
The one thing that has been evident in the last few hours (as I write this, less than 48 hours after FIFA circular #1873 was published) is that many are interpreting this announcement, and its subsequent implications very differently.
These varying opinions are understandable given how uncertain and fractured the agent regulatory landscape already was even before this latest development. Yet, also considering the different roles, backgrounds, responsibilities and theatres of operation for the many thousands affected by these regulations, they will understandably have different views, opinions and interpretations.
If One Thing is Certain ....... It is Further Confusion
Whilst we all want certainty after over 5 years of debate and over a year of legal wrangling; the only thing that we can be sure of is that this proclamation (circular) from FIFA has left people even more confused and uncertain, at a time when we were hoping for clarity (not least with the transfer window in many countries due to open imminently).
In fact, in England (one of football’s largest football and transfer markets), The Football Association has been ‘dealt a cruel hand’; having been due to implement their new National Football Agent Regulations (NFAR) under FFAR less than 2 days after FIFAs circular (1st January 2024), on the eve of the transfer window opening and all during a public holiday.
FIFA's National Member Football Associations Passed a Unpalatable ‘Hot Potato’
One of the first things to note from the FIFA circular (#1873) is the apparent non-committal nature of FIFAs guidance to their Member Associations (the National FAs), in that FIFA “recommend(ed) all the member associations to temporarily suspend the equivalent provisions from their national football agent regulations”.
This arguably puts the onus on the national associations (MAs) to take the decision over NFAR in relation to FFAR, rather than FIFA take responsibility (for a situation of their own making), and no doubt they then risk the wrath of various participants for any decision they may take with their NFAR.
Subsequently, there is then the added complication for those MAs who have already implemented their NFAR (investing time, money and resources in doing so), if only to correlate with FIFAs guidance and fulfil their obligations under FFAR (A3:P1 “Member associations shall implement and enforce national football agent regulations by 30 September 2023”).
Subsequently, are these MAs now expected to reverse their NFAR (either in full or part) and thus cultivate more confusion for themselves and the participant for whom they have a ‘duty of care’?
‘Order, Counter Order Result in Disorder’ ….. if Not Confusion, Conflict and Dispute
On a personal note, the phrase “Order, Counter Order Equals Disorder” is one I try to refrain from using unless absolutely necessary, as I associate it with a person from my past who was guilty of being absent when it came to their own ‘duty of care’ to others ……. but in this situation and considering some of the key protagonists, it seems very apt.
Whilst I won’t, for the purposes of this article go into all of the suspended aspects of FFAR from the aforementioned FIFA Circular, I do want to focus on those aspects that I believe will cause further confusion; and thus, conflict and dispute for many participants.
Conflicting Contracts and Representation Agreements (FFAR vs NFAR)
Whilst many agreements and contracts involving agents will (or at least, should), define the applicable laws and jurisdiction governing said agreements, even if only for the purpose of dispute resolution mechanisms such as arbitration (as with The FA’s ‘Rule K’ arbitration process in England). This is often reinforced by footballs own prescribed standard dispute resolution mechanisms whether national or international (through FIFA), that avert football participants in dispute from litigation (although some would claim the hidden purpose is to keep matters confidential and ‘controlled’).
Yet, given the fractured, uncertain and confusing nature of the implementation of FFAR over the last year; this has understandably led to many such agent related contracts and agreements becoming more complex to account for variations between territories, different phases of FFAR implementation as well as other aspects such as licensing, caps on commissions and remuneration schedules.
In light that we now see further potential variations to the regulations between different national football associations (MAs) with some even applying a partial FFAR implementation, it is almost guaranteed that many such agreements will now need revising yet further, rewriting or even conflicting with the effects of changes as a result of the latest FIFA circular. Subsequently, this will now possibly result in more conflict and disputes, if only because of mass confusion and overcomplication.
Suspensions of Article 20 and 21 – Dispute Resolution and Football Tribunal
From a dispute resolution angle, one key area that FIFA have seemingly suspended as part of their circular; are articles 20 and 21 of the FFAR, which for me is a very questionable course of action for FIFA to take.
This is firstly because FIFA establishing a Football Tribunal of which the Agents Chamber was one such facet; was one of the elements welcomed by many as part of FFAR.
However, in seemingly suspending the Football Tribunal for agent related matters, it leaves a question as to where disputes of an agent related nature with an international dimension will now be heard and decided upon due to the suspension.
Furthermore, if a dispute of a solely national dimension cannot be resolved in a ‘national arena’ (DRC) this would sometimes be passed to the FIFA football tribunal for resolution.
Yet, with the suspension of these articles in FFAR, are we to assume that agent related disputes of an ‘international dimension’, or where a national MA does not make provision in their NFAR, that agent related disputes will have to be resolved through the national judicial courts with costly and non-confidential litigation?
It Will Soon Be Over with an ECJ Ruling …….. Or Will It?
Whilst many are commenting on the fact that the ECJ (EUCJ / European Court of Justice) will provide some clarity with their ruling on FFAR, even with the FIFA circular on the worldwide temporary suspension of FFAR referencing that it will be in place “until the European Court of Justice renders a final decision in the pending procedures concerning the FFAR”; there are two glaring questions for me to ask :
Whilst I won’t, for the purposes of this article go into all of the suspended aspects of FFAR from the aforementioned FIFA Circular, I do want to focus on those aspects that I believe will cause further confusion; and thus, conflict and dispute for many participants.
Whilst I won’t, for the purposes of this article go into all of the suspended aspects of FFAR from the aforementioned FIFA Circular, I do want to focus on those aspects that I believe will cause further confusion; and thus, conflict and dispute for many participants.
1 . When will the ECJ ruling be made? As on past evidence and timescales a reasonable estimate is that a decision will be made in late 2024 – during which time new contracts, agreements and transactions will be finalised under an uncertain, speculative and confusing regulatory framework for agents.
2 . What impact, if any, will it have on the rest on the world outside of the European Union (which now includes the major football market of England and the rest of the UK).
The Role of Mediation in an Age of Uncertain Football Agent Regulation
So, with all the uncertainty that remains there will likely be many disputes experienced and generated ‘under this cloud’ of FFAR confusion, many of which will be required to be resolved in a confidential, timely and cost-effective manner.
Hence, I firmly believe mediation is the way forward for many in resolving such disputes in an world whereby ‘Football Agent Disputes Are Ready to Go From Busy to Overdrive’, and the form of mediation is definitely NOT FIFA’s somewhat twisted interpretation of ‘mediation’ – which is ‘arguably not ‘True’ Mediation but Arbitration on the Cheap’.