What is FIFA’s Long Game, and Have they a 'Bargaining Chip' in the Agent Regulation Dispute?
13th March 2023
Probably because in 2 days time (15th March 2023) the deadline set by FIFA for applications to sit the first of the new FIFA Football Agents exam, I have noticed a considerable increase over recent weeks and months in the amount of interest, commentary and questions regarding the new FIFA Football Agent Regulations (FFAR) approved in December 2022. This understandably includes the exam, as well as the ongoing disputes between FIFA and many of the agents (and agent groups) all around the world.
In all honesty, after 6 years of observing this debacle and being somewhat indirectly involved over the last 2 years; I am very tired of the whole saga and very frustrated with it and many of the protagonists, on behalf of many of those affected.
Not least as it as seems some very astute, intelligent and educated people have let their ego’s, agendas and ideals get in the way of reaching a resolution that is in the best interests of most (if not all) affected.
Do I think a resolution is possible at this seemingly late stage?
The simple answer is yes.
Do I think a resolution will be reached at this late stage?
Sadly no – I think the intention of it being decided by the courts was almost inevitable from early-2022 (if not before).
Football Loves ‘Brinksmanship’
Just one of the factors I really don’t like in the football world is that of brinksmanship (with ‘transfer deadline days’ being the glaring example), however in this scenario I think it may well be the last bastion of hope that the disputing parties can reach some form of agreement, to allow everyone to move forward and resolve matters, even if at the last minute.
Maybe, just maybe, there is some chance of sense prevailing and an agreement reached to allow everyone to move forward – as I think it safe to say that there are not many who support the retention of the FIFA Regulations on Working with Intermediaries (RWWI) from 2015; and the football agent industry needs fit, proper and fair regulations sooner rather than later.
Looking back on 2015, brinksmanship was also evident again back then in the agent-FIFA dispute over RWWI. Threats of injunctions against the new RWWI went ‘down to the wire’, and ultimately it resulted in the (old) FIFA regime ‘softening’ its stance (and wording in the RWWI) on the most contentious matters, if only to avoid litigation (as did other football governance bodies).
FIFA's ‘Bargaining Chip’
During the period over which FIFA have been refining the FFAR in recent years, I maintained my belief (and also shared this belief with others) that FIFA would soften its stance in varying the ‘cap’ on agent’s fees, if only to demonstrate some ‘flexibility’ and signs that it was ‘listening’ to the objections.
And in this assessment, I was correct; the capping of agent’s fees in the FFAR did change and were somewhat ‘softened’; but, understandably not to the degree many objecting to the FFAR were wanting.
Personally, I don’t believe that ‘for one second’, that the key decision makers at FIFA believed this change/softening on their behalf would placate the objectors or ward off the threat of litigation from agents and agent groups.
However, my second assessment of this, is that FIFA have effectively created (unintentionally or intentionally) a large and very credible ‘bargaining chip’ which they hold in their hands. If forced, they may have to (or voluntarily decide to) play the chip in an effort to resolve this dispute thus avoiding costly litigation and effectively relax their stance on ‘controlling agents fees’ without FIFA seemingly ‘losing face’.
The metaphorical ‘bargaining chip’ to which I refer, is that of reverting from a stance of a ‘hard cap’ on football agent commissions, and exchanging that for a ban on dual representation (duality) and tripartite representation by agents.
A 'Bitter Pill' for Some to Swallow, But a Necessary 'Medicine'?
I readily accept that this is something that is non-negotiable to many of the ‘hardliners’ on both sides of this dispute (being so engrained in their mindset, following an argument that has rumbled on for some 5 years now), but I hope, that to the more reasoned elements on both sides of the dispute, they can see my reasoning with this thought. In fact, many may have already considered this proposition and how they would react to such a proposal, should it happen.
A few weeks ago I wrote an article asking the question ‘Have FIFA & Football Agents Backed Themselves into a Corner?’ in regards to the dispute over the new FFAR. And although ‘backing themselves into a corner’ may not be a wholly accurate analogy at this point, it is certainly a case (as supported in the article) where both sides cannot realistically be seen to ‘lose face’ or ‘back down’ in the dispute.
However, with this ‘bargaining chip’ in mind, there are several reasons as to why it may not be plausible to some hardliners, on the premise that they will perceive it as ‘losing face’ or ‘backing down’:
- Agents have successfully fought a ban on ‘duality’ (dual representation) in the past
(said victories I have heard trumpeted monotonously as a great victory by some on many occasions over the years)……….. yet on the other side of the debate,
- FIFA pledged to curb agents’ fees with the implementation of the new FFAR (through a cap) as part of its much-heralded FIFA 2.0, FIFA 3.0 and “modernising the (football) regulatory framework”
So, to the more moderate minds (including those on both sides of the dispute), is the exchange a reasonable and fair ‘bargain’? I would say it is (well I would, otherwise I wouldn’t be pleading the case), not least as:
- FIFA can be seen to address one of their key objectives: i.e., conflicts of interests.
In effect, they only have one aspect of duality permitted in the new FFAR anyway.
ALSO they gain credit for making substantial steps in trying to resolve the dispute for the ‘good of the game’. - Agents don’t have their commissions capped.
The agents can therefore claim a ‘victory’ on their seemingly primary objection, their incomes aren’t curbed to an extent, although some business restructuring may have to be implemented. - Many of the key legal arguments are addressed.
For example, conflicts of interest are recognised in many legal frameworks and professions, whereas capping of professional fees is seen as unlawful if not illegal in some jurisdictions.extent
Will the ‘Chip’ Be Played – or will the Disputants ‘Go All In’?
In all honesty, I doubt this ‘bargaining chip’ will be played (by FIFA), and even if it was, I doubt very much it would be entertained (by the agents as a whole). Having heard a lot of rhetoric from both sides, and knowing the egos and mindsets who are at the forefront of this dispute, I believe there is in effect no room for negotiation, they want a win whatever the cost.
In fact, there is my challenge: if any such decision makers in this dispute are reading this ……… PROVE ME WRONG!
My Predictions at This Late Stage
Over the last few years, I have made several predictions over this dispute, the steps taken by the various protagonist as well as changes in the FFAR. Some I have got 100% correct, some partly correct and some wrong (or unproven at this stage).
However, at the time of writing, how do I think this dispute will pan out:
- The dispute lodged with CAS (the court of arbitration for sport) by one agent group (PROFAA), will find that FIFA must reconsider the FFAR and as such the full implementation of the FFAR will be delayed.
This, however welcome, will also be damaging for the football world as a whole, leaving the various groups to continue under the inadequate RWWI for many months if not years to come.
- The various challenges all around the world (from agents and agent groups) will be heard, with some upholding the complaints of the agents, some upholding FIFAs case (and the FFAR), whilst others may refer the case to another court or some form of ADR (Alternative Dispute Resolution) mechanism.
This I believe will be even more damaging for the football world as a whole, leaving a fractured football agent regulatory system worldwide. With the FFAR enforceable in some territories, the RWWI in others and domestic regulations in others – a wholly undesirable and confusing situation for agents, FIFA and many other football stakeholders worldwide.
The only ‘softening’ of such an outcome may come from the challenge through the European courts (which I believe is coordinated by EFAA agent group) whereby European nations will largely be obliged to recognise the judgement and thus either RWWI or FFAR will apply for the foreseeable future.
I am by no means an expert on the merits of the legal arguments and cases put forward in the dispute over the FFAR, some I have touted as challenges against FIFA and the FFAR, and seem well judged and justified, whilst others are spurious. However, as a ‘legal-muggle’ on such matters, I can’t help but think FIFA have arguably a slightly easier task in this dispute, as they solely have to prove that the steps they are taking are justified, whilst it would seem the agents in their challenge have to prove that FIFA are wrong in what they are doing (if not, that some actions are illegal). Justification for an action is arguably in my mind somewhat easier to prove than outright wrongdoing – and thus for me, this dispute is finely balanced in which way the ruling(s) will go and which side they will find in favour of.
As I think I have firmly alluded to, despite my wishes, hopes and dreams ……. I don’t foresee this dispute being resolved before being heard and adjudged through the courts. It will be messy, expensive and whatever the outcome, if adjudged wholly in favour of one party or another there will be problems for all impacted by agent regulations and agent activity.
But my challenge is there to those key protagonists in this dispute: FIFA play that ‘bargaining chip’, then the agents accept it ……… I doubt either will.
Go on prove me wrong …………… and seeing as much of the debate has been reduced to playground squabbling at times: I DARE YOU!