Mediation in the Dispute Between Agents and FIFA:
Would or Could It Ever Succeed?
12th August 2024
This is a topic I have written about (and spoken about) on numerous occasions in the past, often with a different viewpoint, subject to the context in which it is considered.
Following an event several weeks ago, where the topics of mediation and the dispute between Football Agents and FIFA over the 2023 FFAR (FIFA Football Agent Regulations) were raised in the same forum; I was again prompted to revisit the topic once more, and ask :
“‘whether mediation, ever would have, or could have, succeeded in resolving this dispute between FIFA and Football Agents over FFAR’?”
If Only We Could Turn Back Time
The first thing that has to be considered, is just how long this dispute has been ongoing, and it still remains largely unresolved at the time of writing (July’24).
Despite the various legal proceedings around the world only coming to the fore in the last couple of years (2022-2023), I firmly believe the ‘writing was on the wall’ and it was very evident that a future dispute and standoff over FFAR would happen ………. as far back as 2018.
Whilst much has been written about the disputed ‘consultation’ process over FFAR, with arguments on all sides having some foundation, the matter of a disputed (if not flawed) consultation process is (for me at least), at the very heart of this dispute, and is a key reason why it has yet to be resolved.
As I wrote about in a more recent article on ‘Where Is Mediation Applicable in Sports Disputes, and Where it Is Not’ ; mediation is not viable in all sports disputes.
Mediation can however be used effectively in avoiding disputes in sport on regulatory and governance matters whereby new regulations or revised regulations may be unlikely to gain approval by those affected (i.e. stakeholders) prior to approval and subsequent implementation, and thus likely be subject to future disputes.
I do at this point have to ‘put to one side’ the debate of ‘whether football agents are FIFA stakeholders?’, and the question of ‘who represents the agents?’, although both are important factors to consider in a wider context.
However, it is my belief that in regards to the FFAR dispute, should mediation have been deployed at the time when initial proposals were being made by FIFA to the agents, and the high likelihood of a future dispute was evident, this lengthy, costly, complicated and still unresolved dispute over FFAR could have been averted through mediation.
A Dispute Sadly Lacking a Vital Ingredient for Resolution
The second thing to consider when reflecting back on this dispute over FFAR, is whether it lacked and continues to seemingly lack one vital ingredient for mediation to be successful in reaching a resolution. And that vital ingredient is ‘good faith’ (as covered in the article ‘Good Faith- the vital ingredient to mediation’.
Having been quite closely involved and heavily invested in the FFAR saga, as well as involved in the debate over Football Agent Regulations for over 10 years, I feel that I am well positioned to comment on the actions, inaction, comments and attitudes displayed by those involved in the FFAR dispute over several years. Hence, I will say that the vital ingredient for any mediation of ‘good faith’, has seemingly been sadly lacking in many on both sides of the FFAR dispute (BOTH from the agents and FIFA).
Hence, without a significant shift in mindset on the issues, problems and people affected by FFAR from those involved in the dispute, venturing down the path of mediation to attempt to resolve the FFAR dispute(s), sadly seems to be a largely pointless exercise currently …… if only based on a lack of ‘good faith’ alone.
In Summary
So, in reflecting back on these two elements (good faith and the dispute timeline), and the dispute over FFAR, I have two primary thoughts on whether mediation could have resolved this dispute, or whether it could do so in the future.
(1) : YES – I believe mediation could have resolved the FFAR dispute,
IF the disputant parties had chosen to deploy mediation at the earlier stage, when objections and concerns were first made clear at the proposal stages. Thus, this may have avoided the initial objections, fears and concerns degenerating into a more engrained dispute, with hardened attitudes (that may ultimately have degraded any ‘good faith’ that may have initially existed).
(2) : Do I believe that mediation could still be used to resolve the dispute over FFAR?
……… put simply YES I do.
But that does however come with several caveats (if not concessions) in the approach of the disputant parties – not least a change in attitudes (if not representatives and decision-makers in the dispute) to demonstrate some ‘good faith’ in mediation achieving a resolution.
I am not going to try and second-guess what the ECJ (European Court of Justice) will decide, in what is arguably the most important case regarding the FFAR dispute (…….. your guess, is as good as mine).
The ECJ could find in favour of the agents, they could find in favour of FIFA, they could return a mixed verdict or they could come back with something inconclusive, and thus throw a confused industry, into a state of total bewilderment, if not madness
But the one thing that I am certain of, is that: the FFAR dispute between FIFA and football agents could have been resolved (if not largely averted) long before now – and in a far more timely, efficient and cost-effective manner.
That is if the values, attitudes, timelines, planning and approaches of all parties to the FFAR dispute had been better suited to mediation.