BATNA, WATNA and (M)LATNA meet FIFA ... and the Disputed Football Agent Regulations

BATNA, WATNA and (M)LATNA meet FIFA ……….. and the Disputed Football Agent Regulations

1st May 2023

In many articles, I have covered in some detail the disagreement dispute between FIFA and most sections of the football agent community over the new FIFA Football Agent Regulations (FFAR). In some of these articles, I have gone as far as to suggest the parties seek to resolve their dispute through mediation (Could Litigation in the Dispute(s) Between FIFA and Football Agents Over New Agent Regulations be Avoided with Mediation? written some 4 months ago), rather than the more expensive and time consuming avenues of arbitration or litigation.

Have FIFA and the Agents Considered Mediation?

Before anyone asks, I haven’t suggested the possibility of mediation to resolve this dispute for my own benefit as a mediator – although in a perverse kind-of-way, I would relish being part of the assigned mediation team in this dispute, but the responses to the idea of mediation have been varied. Some responses would be considered as open to the idea, whilst others have been opposed (and this has been the same for both disputant groups).

Sadly, it would seem that those who are more willing to consider mediation to resolve the dispute, are not those in the position to make decisions on such matters. Either they’re a minority in voting scenarios, or do not wield the authority to sanction such a considered move.

The latter, who do not seem to want to even consider mediation as a route to resolve the dispute, are often guilty of a number of misconceptions about mediation and/or are too wrapped up in personal agendas, battles, if not self-interest (some of which may be considered to be a potential for a conflict of interests):

· Naivety and misunderstanding about mediation – something I have come to accept, in that very few people truly understand what mediation is (not just in football). Even more worryingly a lot of lawyers don’t understand, choose not to understand or pretend they don’t understand what true mediation is (let alone the benefits).

For example What Chance Has Mediation Got in Football ……. When it’s Elder and Stronger Sibling Is Still Misunderstood?

As such in this dispute, the disputants can possibly be forgiven for not understanding where or how mediation could help. The misunderstanding of mediation is not an industry-based hurdle, neither is it cultural, although some countries I would say are more advanced in their understanding and application of mediation.

· Profile, Bravado and Wanting ‘Their Day in Court’ – there is little doubt in my mind, that given the amount of time that this dispute has gone on in various forms, which must amount to possibly 4 to 5 years; a lot of money has been spent, a lot of energy has been expended and a lot of frustration (if not anger) has been experienced. As such, it is understandable ‘to an extent’, that the attitude of “we’ll let the courts decide” is now engrained in the psyche and mindset of key protagonists, irrelevant of the costs in terms of finance, time and effort.

The other thing to consider in this specific dispute is the profile, publicity and/or notoriety to be gained as the victorious party. It is fair to say that football has its fair share of ‘egos’ that ‘need to be fed’, and these exist both within the football agent community and the football authorities. For some of the agents involved, this seems to have developed almost into a personal matter with FIFA also. Their dislike of the football authorities has never been well hidden, and this dispute was in my view enflamed by personal vendettas and dislike for FIFA in more recent times. With the scandals attributed more to the old FIFA regime in the mid-2010’s, this may well have been seen as an opportunity for some to inflict further damage on the reputation of a weakened FIFA that is still trying to repair its image.

On the FIFA side of the dispute, I firmly believe that there are genuinely people who want to implement fair but robust and adequate regulations for football agents, and they try to work

with the agents to achieve this. However, as with the agents we cannot blindly think that there aren’t motivations within the football authorities to keep this dispute ‘rumbling on’ and going for an all-out win. Whether this again be for profile, power, political point scoring, ego or career progression.

Also, we have to ask a similar question of the lawyers involved in the case. Are they more focussed on resolving the dispute for their clients as expediently as possible, or going for a widely publicised resounding victory to put them on a comparative scale with the likes of Nick De Marco for football disputes in the UK, or even a Jean-Louis Dupont on the European and World stage after his victory in the Bosman case?

· Vested Interests (possible ‘conflict of interests’) – I am quite certain that in some cases, the lawyers involved in the litigation or arbitration process don’t want a mediator ‘sticking their nose in’. Although any professional lawyer with a conscience will want to see a dispute resolved satisfactorily for their client (and themselves), it wouldn’t seem totally unfair to say some people may think that a few may have an ‘eye on the clock’ and wondering when they will next be remunerated for their efforts.

One of the most interesting things I have heard is that some arbitrators and experienced legal minds not directly involved in the dispute, agree with my view that mediation should at least be attempted in the dispute(s) over the FFAR.

The feeling is that it is quite likely (especially in those disputes heard by arbitration based ‘theatres of law’ such as CAS (Court of Arbitration for Sport)) that some arbitrators/panels/judges/courts may possibly refer this dispute for mediation (and/or question why mediation hasn’t been attempted), rather than make a judgement or pass a ruling on the dispute until mediation has at least been attempted.

What are the Alternatives to a ‘Negotiated Agreement’

(i.e. through Mediation)?

So why am I writing this? Well, the reasoning behind this article is that I wanted to apply a little bit of mediation theory and practice in relation to this dispute, especially given the fact that the likelihood of mediation in this dispute is very remote at this late stage (unless, as mentioned previously a judge, panel or court order the parties in the dispute to commence mediation first).

The first thing to point out is that most mediators are different in their approach, and any professional mediator won’t claim that theirs is the only correct way to conduct a mediation. There is no single right way to mediate (providing the core values are observed and maintained), mediators have different techniques, tool-sets and methods which they refine over time and adapt relative to the variables of a dispute. However, one of the ‘tools’ that many mediators use is that of getting the disputants to think about the alternatives to reaching a negotiated agreement (NA) from a successful mediation. i.e.:

BATNA – BEST Alternative to a negotiated agreement.
WATNA – WORST Alternative to a negotiated agreement
MLATNA – MOST LIKELY Alternative to a negotiation agreement

(NOTE : personally I tend to ‘drop’ the ‘MOST’ (M), as (1) I find it a bit of a ‘mouthful’, and (2) it can at times be limiting in identifying likely alternatives, and also delay the process unnecessarily with procrastination on identifying which alternative is ‘MOST’ like.

Passed Myself a ‘Hospital Ball’

Now this is where I have delivered myself a bit of a ‘hospital ball’ to use football parlance …………… a ‘curve ball’ if you prefer baseball, and a ‘googly’ if you partake in the ‘noble’ game of cricket.

This is because the football agent regulations (FFAR) dispute between FIFA and the football agents is not a single dispute (i.e it is filed in several ‘courts’, several jurisdictions and by different parties), many of the parties taking action against FIFA are not the same (not even connected or allied in some cases) and most importantly, the claims on which the disputes are based are also varied.

So, to apply typical mediation theory and techniques to this dispute, whilst not impossible, would be incredibly complex without access to all the disputants, access to the case details, and in essence it would consist of numerous mediations and not just one mediation process.

With this in mind, what I have endeavoured to do is look at this from just three perspectives across two disputes based on what I understand the basis of the disputes and cases from the disputant groups (with limited case notes and just the core areas of the dispute).

Dispute 'ONE' – The More ‘MODERATE’ Agents vs FIFA

FIFA’s BATNA

The regulations (FFAR) are found to be fully compliant and are approved, with the agent’s case being dismissed and the FFAR implemented in full (including agents cap and full disclosures on agent transactions etc). This subsequently reinforces FIFAs standing as football’s world governing body, and may limit the disruption of agents on further regulatory changes to agent regulations.

FIFA’s WATNA

FIFA’s (M)LATNA

Moderate Agent’s BATNA

The FFAR are found to be compliant, with the exception of the agents key disputed elements i.e. the capping of agents fees and disclosures/publications etc ….. allowing the FFAR to be introduced on the least contentious points.

In addition to this, FIFA are instructed to implement an empowered consultative and representative agent’s body in regards to revision and enhancement of the FFAR moving forward, in addition to recognising agents as football stakeholders through relevant groups and representations at FIFA. All costs incurred by the agents for the dispute, are ordered to be paid/reimbursed by FIFA.

Moderate Agent’s WATNA

The regulations (FFAR) are found to be fully compliant and are approved, with the agent’s case being dismissed and the FFAR are implemented in full (i.e. caps and full disclosures).

Moderate Agent’s (M)LATNA

The regulations are found to be compliant, with the exception of the capping on agent’s fees, and as such the FFAR can be implemented with that one exception. This is on the proviso that the other disputed FFAR elements (e.g. agent disclosures) are compliant with the laws of each national jurisdiction.

Dispute 'TWO' – The More ‘INTRANSIGENT’ Agents vs FIFA

FIFA’s BATNA

FIFAs BATNA in this dispute is possibly the same as in the case of the ‘Moderate’ Agent groups.

FIFA’s WATNA

The grounds on which the agents are challenging the regulations (FFAR) are found to be justified and the new FFAR are ‘scrapped’ in their entirety, leaving FIFA to cover costs of the cases as well as reimburse and compensate affected parties (e.g. FFAR exam candidates in 2023 and member associations hosting exams).

Furthermore, the hearing brings into question FIFAs authority to implement such regulations, damaging FIFAs standing as the football world governing body; and cases such as Piau in the European Courts are revisited again looking further into FIFAs authority and level of control (e.g. anti-competitive).

FIFA’s (M)LATNA

FIFAs (M)LATNA in this dispute is possibly the same as in the case of the ‘Moderate’ Agent groups.

Intransigent Agent’s BATNA

The FFAR are found NOT to be compliant and thus are ‘scrapped’ and FIFA have to start again with the FFAR v2. This time however the process will be undertaken with prescribed guidelines as to what is accepted by both FIFA and the agents as ‘meaningful’ consultation.

*NOTE : in my opinion it will be very difficult to appease the most extreme members of those in the ‘intransigent’ agent demographic, even if FFAR is scrapped. There is a key focus on destabilising FIFA as an authority especially on FIFAs authority to regulate football agents, and as such they may seek to establish a self-regulating authority for football agents (suffice to say I think that is a bad idea).

Intransigent Agent’s WATNA

The regulations (FFAR) are found to be fully compliant and are approved, with the agent’s case being dismissed and the regulations are implemented in full (i.e. caps and full disclosures).

With no question as to FIFAs authority, the FFAR or the ‘consultation’ process in developing the FFAR, thereby strengthening FIFAs position as the governing body and one who can largely unilaterally regulate the profession of football agents.

Intransigent Agent’s (M)LATNA

*Similar to the ‘Moderate’ Agents*: The regulations are found to be largely compliant with the exception of the capping on agent’s fees, and as such the FFAR can be implemented with that one exception.

However, it is worth noting that the more extreme challenges of the ‘intransigent’ agent’s argument and complaint (e.g. FIFAs authority to regulate agents) could be considered either frivolous and/or dilute the effectiveness of their more reasoned arguments (e.g. the ‘cap’ on agents commissions). As such, this may even result in the remote possibility of the ‘intransigent’ agent’s challenge being more akin to their WATNA than their (M)LATNA.

In Summary

As I alluded to earlier, these perspectives are purely theoretical and based on my understanding of the situation and the challenges in the dispute over FFAR; along with the history of the agent dispute, agent regulations and some of the key protagonists involved.

Some may shout that it is not the place of a ‘mediator’ to exhibit bias, or preconceived ideas that may damage their independence. However, in any mediation, I believe a mediator has a duty to examine the case from all disputants and develop a hypothesis on the dispute and also the possible outcome (i.e. (M)LATNA). If only to challenge their hypothesis as the mediator, rather than prove it.

The dispute over football agent regulations between FIFA and the agents has gone on far too long now (4-5 years) and needs resolving (which I think is the one thing both disputant groups will agree on), despite there being a chance that the likes of CAS (Court of Arbitration for Sport) or another judicial body may well advise both parties to try mediation first …………. However, I personally think that opportunity passed in the first quarter of 2022.