Should Football Give Up on Trying to Regulate football Agents
.......... AND DEFER TO the Likes of COMMON LAW AND THE ‘LAW OF AGENCY’?
21st March 2023
It may come as a bit of a surprise to many that I have even pondered on this question, let alone actually asked it. Not least, as for many years I have strived, campaigned, requested and encouraged for better professionalism and improved standards in the football agent industry; an essential part of which is effective and fair regulations both on a domestic (e.g. The FA) and international level (i.e. FIFA).
Yet, despite my best efforts (and the efforts of many others) in striving for this goal, it is safe to admit we came up largely ‘empty handed’. We have the retrograde steps taken in regard to Football Agent regulations in 2015, and now (2023) a ‘standoff’ between agents and FIFA over new regulations (FFAR) that are seen as unfair if not unlawful in many ways; plus, an implementation and consultation process that many claim has been flawed from the beginning – in 2018.
What Has Prompted My ‘Change of Heart’?
In some ways it is disappointing that I have decided to look at giving up on the implementation of effective and fair football agent regulations, but sadly it looks inevitable that we may well have to contend with one of the following for the foreseeable future:
- A continuance of a poorly regulated industry –
e.g., should the 2015 FIFA Regulations on Working with Intermediaries (RWWI) get a ‘stay of execution’ whilst the bickering and legal challenges continue?
- A fractured and confusing system of football agent regulations globally –
should the legal challenges to the new FIFA Football Agents Regulations (FFAR) be upheld. It is reasonable to presume that not all national courts and legal frameworks will be consistent in their appraisal of the FFAR or the challenges to the FFAR. Different regulations may well come to apply globally, thus causing unnecessary confusion for all involved (e.g., clubs, players, coaches and agents).
- A black-market that is even more opaque and shadowy than before –
with the new FFAR arguably making the operations of many agents even more difficult (if not impossible) with restrictive caps and questionable publication of information. Subsequently forcing these agents to operate outside the regulations, as well as the players, clubs and coaches they may be working with.
The Painful Hangover of the RWWI
I think I am more than justified in saying that the introduction by FIFA of the 2015 RWWI (Regulations on Working with Intermediaries) was an unmitigated disaster, with even the new FIFA regime admitting it was a mistake.
Back in 2013-2015, I and many others campaigned against the implementation of the RWWI and warned FIFA it was doomed to failure. Although not a ‘deregulation’ of football agents as some would like to ‘frame’ it, I prefer to use FIFA’s own term, that it was “abandoning” the football agents regulations and the football agent license.
This article wont dwell on the matter of the RWWI too much, not just because of my view that the sooner it is abolished the better, but also for the fact that I have written about it in previous articles. The article I wrote in 2020 ‘Maybe I was wrong and FIFA (‘s intention) was right?’ looked back on the debacle that was the implementation of the RWWI and made me analyse whether FIFAs intention at
the time was correct and it was the incomplete and poor implementation of RWWI that led to its failure.
In fact, if the perceived aim of FIFA (possibly) in 2015 with RWWI was carried out correctly by both FIFA and all of the National (Member) Football Associations, then we probably wouldn’t be in the mess we are in now with the regulation of football agents/intermediaries. This includes the fact that the 3 unwanted scenarios (and their subsequent problems) that I mentioned above, would be lessened if not avoided altogether.
FIFA Agent Regulations Are Already ‘Trumped’ and Superseded
It is fair to say that FIFAs regulations for agents (and intermediaries) have long been superseded in several ways with regards to matters that are not of an ‘International Dimension’, and thus have given precedence to national laws indirectly. Not least as National/Member Associations are allowed to impose stricter regulations domestically, than just the core FIFA agent/intermediary regulations.
e.g. “They (member/national associations) may also deviate from those provisions where they conflict with strict mandatory provisions of the law applicable in the territory of the member association”.
And whilst “Recourse to ordinary courts of law is prohibited” by FIFA, there are cases where specific provisions can be provided for by FIFA in their statutes and regulations to observe national laws (e.g., the representation of minors by agents).
In addition to this, FIFA regulations were superseded by the French authorities (I believe to be the same time as the RWWI came into force; on 1st April 2015), where the RWWI (and the term ‘Intermediary’) was formally announced by the French Authorities as not being recognised, and subsequently the ‘profession’ of Football Agents became subject to national/federal law.
Then a few years later, the Italian authorities followed this by also making the football agent/intermediary role subject to national legislation; the ‘driving force’ of which I believe came mainly from a group of agents (and lawyers) as IAFA for better regulation.
Lessons of the term ‘fiduciary’
Some time ago when I first started in the football agency world. I was educated on the term ‘fiduciary’ by a lawyer-friend; if only to try and encapsulate my approach to the agency world, and the long discussions we would have about ‘conflicts of interest’ and ‘duality’ (dual representation).
‘Fiduciaries are individuals (e.g. agents) who must put their clients’ (e.g. players) interests ahead of their own. Their clients are called beneficiaries or principals’.*
However, I must admit this journey and examining how fiduciary duty and law of agency applied to the football agent world was indeed both contradictory, and confusing.
With ‘unlicensed agents’ falling somewhat outside of the regulations (at all stages) and even the state courts hearing cases on football agent matters (which is supposedly prohibited by FIFA), the most prevalent case I found at this time was that of ‘Imageview Management Ltd vs Kelvin Jack (2009)’.
This case, in simple terms involved the agent suing the player for non-payment of agent commissions and then the player counterclaiming against the agent for receiving undeclared commissions that related to the contractual relationship between the agent and the player (as the client). Subsequently, the court found in the players favour, on both the grounds of a ‘conflict of interest’ and a ‘secret profit’. This judgement and the substantial award in favour of the player is one that all agents should be aware of, and also their duties as a ‘fiduciary’.
In the case Lord Justice Jacob, expressed:
"An agent's own personal interests come entirely second to the interest of his client. If you undertake to act for a man you must act 100% body and soul for him. You must act as if you were him. You must not allow your own interests to get in the way without telling him. An undisclosed but realistic possibility of a conflict of interest is a breach of your duty of good faith to your client."
I must also point out that in my opinion this dispute lends itself directly to FIFAs dispute mechanisms for disputes between football participants as it is hard to argue it is not of an ‘international dimension’.
Needless to say, ‘Fiduciary’ (and ‘fiduciary duty’), has now become a mainstay of my professional ethos and approach as well as a go to word in many situations. It is one I have promoted the meaning of, and more importantly ensure that people understand it. In fact, it seems that on using it on many occasions to representatives of the likes of the FA and other football authorities, they too have ‘latched onto’ the term FINALLY, and it has even been incorporated into the English FA intermediary (agent) regulations. Although, I am still very doubtful that they and others truly understand the meaning or apply it to the regulations adequately.
'Law of Agency'
My esteemed legal associates may well correct me here, but probably one of the closest associated concepts in commercial law to that of ‘Fiduciary Duty’ is quite aptly (i.e., when referring to football agents) the ‘Law of Agency’, whereby the common law definition of ‘agency’ is:
“the fiduciary relationship which exists between two persons, one of whom expressly or impliedly manifests assent that the other should act on his or her behalf so as to affect his or her relations with third parties, and the other of whom similarly manifests assent so to act or so act pursuant to the manifestation.”
Hence, the failure of football to effectively regulate football agents for a prolonged period, and the ongoing dispute regarding the regulation of football agents and the new FFAR, has led me to believe that it is time for the football authorities (including FIFA) to relinquish control regulating football agents and their activity.
As such, let the natural laws of each territory (such as the ‘Law of Agency’ in England and Wales) decide and rule on matters of football agent activity, as they do in any other such commercial or client-agent relationship under such factors as any law of obligations or civil code.
And without going into the debate of whether football ‘operates somewhat outside of the law’ or based on the fact that the football industry is so nuanced and thus doesn’t operate like other businesses so common law is often difficult to apply, I do firmly believe that on the aspect of ‘football agents’ and football agent activity, the relationship between agent and client is little different to the same relationship in many other industries under commercial law.
1- A continuance of a poorly regulated industry –
i.e. should the 2015 FIFA Regulations on Working with Intermediaries (RWWI) get a ‘stay of execution’ whilst the bickering and legal challenges (over FFAR) continue?
2- A fractured and confusing system of football agent regulations globally –
should the legal challenges to the new FIFA Football Agents Regulations (FFAR) be upheld. It is reasonable to presume that not all national courts and legal frameworks will be consistent in their appraisal of the FFAR or the challenges to the FFAR. Different regulations may well come to apply globally, thus causing unnecessary confusion for all involved (e.g., clubs, players, coaches and agents).
3- A black-market that is even more opaque and shadowy than before –
with the new FFAR arguably making the operations of many agents even more difficult (if not impossible) with restrictive caps and questionable publication of information. Subsequently forcing these agents to operate outside the regulations, as well as the players, clubs and coaches they may be working with.
Who Will Settle Disputes?
By reverting to such laws as ‘Law of Agency’, the regulation of football agents and their clients (whether clubs, players, coaches) remains somewhat unchanged on the current situation; although a significant layer of bureaucracy and confusion is removed.
And on the matter of disputes between agents and other footballing parties, this is again somewhat undisturbed if not streamlined; with disputants open to find the most applicable mechanism to resolve their dispute rather than a predefined course. Arbitration is still an option for disputants, as is football mediation (albeit a somewhat new concept to football), providing the disputants an option for confidentiality in their dispute. Likewise, litigation is opened up as a possibility for the disputants to choose, should they so wish.
Some in the football governance hierarchy may well vehemently oppose such a suggestion that football regulations give way to national laws, and thus wish to keep control of regulating football agents for whatever reason whether it be financial, confidentiality or just to retain diktat and control.
In fact, I would go as far to say that some, including those at FIFA and some of the National (Member) Associations may well be glad for the burden of agent regulations to be ‘lifted from their shoulders’.
It is hard to argue against the fact that the ‘law of agency’ has already stepped in to resolve football agent matters, which may well be considered under the direct jurisdiction of football agent regulations, as in the case of Imageview Management Ltd vs Kelvin Jack (2009) (as mentioned above).
With all that in mind, is it best that the football authorities (including FIFA) finally decide ‘enough is enough’ and ‘step back’ decisively on the matter of regulating football agents and football agent activity?
Not as in 2015 with the RWWI, which was in effect ‘a sticking plaster on a severed limb’, but allow for Common law (or the law of another country where that applies to the contract) to regulate football agent activity.
So, the question is, should FIFA and football as a whole hand over full control and regulation of football agent activities to common law and arguably ‘common sense’?