Introduction
The new FIFA Football Agent Regulations were announced in January 2023. What has ensued in the months following the announcement has been nothing short of chaotic. Despite the regulations being laid out in the FFAR document, a significant amount of confusion and discussion has surrounded the implementation and nature of the regulations.
In previous blogs we have discussed the ongoing legal cases and objections to certain aspects of the FFAR, including the attempts to cap commission/service fees. However, in this blog we will focus more upon how the variation and contradictory nature of court decisions internationally are creating an extremely problematic landscape that will cause a large amount of unfairness, inequality and inconsistencies between agents operating in different countries, greatly impacting the livelihoods and careers of many and threatens the integrity of the industry rather than serving the desired purpose of the new regulations in improving the business of football agents.
The current status of agents and the fact that they are not considered major stakeholders in the eyes of football’s premium governing body has meant these issues have compounded and been taken to court by different agencies across many countries. This blog will present ideas and topics which, if properly and formally discussed and adjusted by FIFA working with an appropriately representative group, could lead to a desirable outcome that is most effective and consistent for both parties.
The Inconsistencies
We hope that the content of this blog allows for a moment of reflection on a pressing matter affecting football agents as a pivotal component of the footballing world. We write with a spirit of collaboration, hoping to address the inconsistencies and inequalities emerging from the new FIFA Football Agent Regulations.
First and foremost, it’s important to highlight that the intention behind the introduction of a qualification exam for agents is commendable and should be acknowledged that it is widely accepted by agents globally that this would be a positive enhancement for the industry. An educated workforce is essential in ensuring that players, clubs, and the sport at large benefit from professional and high-quality representation. This step is a progressive move that ensures that only those truly equipped with the requisite knowledge can operate within this complicated sphere.
However, while the motive to ensure ethical practices and avoid exploitation is well-founded and encouraged, the ongoing court cases and already concluded decisions regarding the legal issues over abuse of dominance, competition law and especially surrounding the attempts to cap commissions and restrict the earnings of agents have brought forth a plethora of challenges. These regulations, whilst originally aimed to be universal, are already being interpreted and implemented inconsistently across the football world. These discrepancies are more than just an administrative problem; it is threatening the livelihoods of many dedicated professionals who have long served the football community, some of which are disadvantaged to a greater extent than others simply based on where they are domiciled.
Agents, like any other professionals, come with varying degrees of expertise, influence, and success. By setting a blanket limit on their earnings, we inadvertently disincentivise the more professional and higher quality of agents, who might seek better opportunities elsewhere, while inadvertently encouraging potential malpractices. The risk is that many agents will seek to find loopholes to be able to continue to be financially sustainable in their careers, especially those operating in lower leagues that will not be able to survive should the service fee caps apply to them. Moreover, these regulations can deter aspiring agents from entering the field, given the limitations imposed on their potential earnings, leading to a potential talent drain in the long run and creating a monopoly amongst the most powerful and wealthy agents, rather than improving the demographic of the industry as a whole.
Furthermore, the global inconsistencies created by varying court rulings inevitably will have consequences that agents in one country will be unfairly disadvantaged compared to their counterparts in another region. Not only does this create an uneven playing field, but it also threatens the very integrity of the industry that these regulations aim to uphold. For example, the current situation in Germany following the grant of an injunction preventing the implementation of the new FFAR has already created a substantial amount of confusion and scope for loopholes. Agents will look to do more business in the German market where the service fee cap does not apply and will seek to register with the DFB if permitted to circumvent the regulations. This creates a detrimental discrepancy between agents operating internationally and the advantages of operating in Germany. The current idea that a ‘link’ to Germany is sufficient to avoid the new FFAR remains unclear as to whether this requires citizenship, having a registered agency there, previously being registered with the DFB, or if you have to be domiciled (live) in the country. However, it also appears the agents that passed the exam in the country and registered with the DFB have been removed from the FIFA Agent portal, creating further confusion.
Similarly in England, there is a great deal of uncertainty amongst agents as the FA has postponed their decision and the extent of FFAR implementation until the 30th November, unless the handing down of the Tribunal’s award is given earlier. Until this time, the FA’s Working with Intermediaries Regulations will remain in force. The Clearing House will also not be functioning as FIFA had hoped during this time.
Elsewhere, in France, the FFF have informed FIFA they intend to ignore the commission caps for now and remain to be governed by the national regulations that were previously in place. Their rationale behind this was to avoid France’s competitiveness on the international European stage due to disadvantages to the agent industry and agents operating in the leagues. Italy has also clearly stated that the attempts of the FFAR to restrict dual representation between a player and a selling club will in fact, be permitted under their implementation of national regulations. It is perhaps unsurprising that many other countries are expected to continue to contradict certain aspects of the FFAR in their national regulations until there is a much greater level of clarity and consistency internationally, possibly as a result of a higher court ruling and judgement.
It needs to be ensured that the regulations are designed in such a manner that serves the desire to create a system where regulations are not just consistent on paper, but also in practice too, ensuring that agents, regardless of where they operate, face the same set of rules and opportunities, and are able to provide their essential services to the world of football.
Are there any solutions?
- Consultation and Collaboration: Engaging in open dialogues with agents, players, clubs, and other stakeholders. Understand the nuances, challenges, and implications of the regulations from those directly affected by them.
Currently, FIFA does not recognise agents as stakeholders as there is no unity between agents nor a properly structured ‘single umbrella’ of agents. This is an advantage for FIFA’s position of power and allowed them to create their own agent group. The current FIFA Agent Platform or “Working Group” is the only “representative body” recognised by FIFA that may appear to be made up of “agents”. FIFA describes its role as a permanent consultative body for agents. However, it is not the kind of beneficial and desirable union that agents are seeking to express their opinions formally and effectively. The group is made up of 18 individuals and is realistically an extension of FIFA and is organised and financed by FIFA itself, failing to truly represent the interests of agents but rather the interests of FIFA. A body created and maintained by FIFA cannot possibly objectively promote the interests of agents and perhaps the lack of a meaningful agent body is why agencies have resorted to suing and pursuing legal action against the FFAR.
Organisations such as the Professional Football Agents Association exist and PROFAA was actually the union named by FIFA within their “consultation process” regarding the new football agent regulations. However, much like the agent working group, the association is not accurately representative of the agent landscape. In fact, it represents around 0.1% of agents globally. Many of the individuals that are part of PROFAA are not actually practising agents and represent a very small minority of the reality. There needs to be a more accurate representative global union that acts as a body protecting the best interests of agents.
Similarly, satellite unions are forming in other countries such as the Association of Football Agents (AFA) in England which have taken on the responsibility of heading the legal case against FIFA over the new regulations. Despite such an approach, the union is still not formally recognised by FIFA and is unable to be representative of agents internationally. Other examples of smaller unions yet to manage to emerge and establish themselves as an independent stakeholder recognised by FIFA include the European Football Agents Association (EFAA), and The Football Forum, set up by some of the most well-known individuals in football agency. There are also agent associations in countries such as Germany, Switzerland and Brazil. However, these unions are not formally organised or majorly actively collaborating with FIFA directly and are primarily focused on legal opposition against the new regulations.
Our belief is that, in light of the new regulations and legal proceedings against them, now is the time for agents to unite and for the establishment of a globally recognised and officially approved agents body that acts as a major stakeholder within football. Perhaps forming something along the lines of a “World Football Agents Union” and being formally recognised as a stakeholder in the eyes of the game’s decision makers.
Importantly, the unified agent body must be truly representative of agents across the world unlike the current FIFA Working Group. In other words, the voices of top agents as well as smaller agencies must be able to be heard and represented. In this way, it ensures that all regulations and conduct of agents internationally can be considered and adapted in order to create a beneficial and ethical landscape for every agent operating in the industry. FIFA then needs to ensure that the dialogue and interaction that takes place between themselves and agents as stakeholders is meaningful and effective; taken seriously and ideas are adapted appropriately to obtain the most suitable outcome for all parties and wider football.
2. Global Consistency: Working closely with national football associations and legal systems to ensure a standardised interpretation and implementation of the regulations. The essence of fairness lies in consistent application.
Despite the intention for the new FFAR to be fully implemented across the football world on the 30th September 2023, in practice very few countries, further to those mentioned above, have officially implemented the new regulations. In fact, the majority are also delaying and waiting for a decision to be made by international courts. This inevitably has accentuated the discrepancies and inconsistencies across world football and its agents, rather than improving the situation as the regulations desired.
Once court cases are concluded, as we will discuss further in our next blog, FIFA needs to reassess the situation and determine how, and to what extent, global equality and consistency is attainable. It is a very difficult task and in regards to many aspects, such as the commission caps, it is simply impossible. Any solution lies in the hope that FIFA’s reconsideration will lead to a more reasonable and justifiable legislation that could be more effectively implemented internationally.
3. Re-evaluation of Earning Caps: While it’s vital to avoid exploitation, it’s equally important to ensure that agents are rewarded fairly for their expertise, connections, and the value they bring to the table. An objective, data-driven analysis could offer insights into a more balanced approach to commissions, particularly avoiding national inconsistencies and inequalities created by contradictory law.
The reality is that implementing a global commission cap is overambitious. It is nearly impossible to make such a restriction universal due to the superiority of local national laws and government legislation. In many countries, national laws will contradict the implementation of a commission cap and will always take precedence over FIFA laws. FIFA’s attempt to create universal commission caps is not only futile but also creates increased unfairness.
Prior to the attempts of the new FFAR, each country had its own generally accepted level of commission ranging for 5-10%. In very rare instances it would be higher. However, now, FIFA have to seek to justify why agents in Brazil and Japan can only earn 3% whilst those in Germany are unlimited in the commission they can claim. Some agents will seek to link themselves with more favourable countries and further vulnerability to undermining the integrity of the industry is possible. The discrepancies seem unjustifiable and the interest in a universally equal commission cap, although noble, is beyond the realms of where FIFA should concentrate their efforts and regulations.
Summary
In conclusion, while the intention behind the new regulations is noble, the unintended consequences can’t be ignored. By working hand in hand with those at the heart of the industry, FIFA has an opportunity to create a robust, fair, and globally consistent system that upholds the integrity of football while ensuring that every stakeholder is given their due respect and reward. In the next blog, we will delve deep into the current legal situation, linking the court cases back to how these current inconsistencies and inequalities can be rectified.