Football Agent Disputes Ready to Go from 'Busy' to 'OverdrivE'
Are Footballs Exisiting ‘Standard’ Dispute Resolution Mechanisms Enough, and Able to Cope?
14th December 2023
For some time now, if you ask anyone involved in disputes in football “how they are” or “how is business” whether lawyer, barrister or governance official, it is somewhat inevitable that many will respond by saying something along the lines that; they are “busier than ever”.
The rapid growth of football in financial and commercial terms, understandably has led to a very competitive industry and with that fierce competition comes disputes between various participants, which include not least football agents and disputes relating to agents matters.
Are Footballs ‘Standard’ Dispute Resolution Mechanisms Enough?
The football world has some very effective governance structures, but along with those there are some ‘less effective’ mechanisms (if not failings). However, the first issue with these mechanisms in a dispute, is to establish which set of regulations apply and which mechanism is to be used in any one particular dispute.
For example, does the dispute apply at an international football level (i.e. FIFA), a regional level, a national level, a competition level or does it ‘fall outside’ of football’s often clandestine jurisdiction and thus the law of the territory applies in the first instance. Hence this in turn takes time and money to establish where a dispute can or should be resolved, and in a strange way can in itself trigger another dispute.
The claim is that by implementing a prescribed dispute resolution framework in football the likes of FIFA, the (Con)Federations and the national (member) associations are streamlining and simplifying the dispute resolution process for themselves, applicable participants and stakeholders. However, some may argue that there are other reasons for this approach, if only to control the process and exclude unwanted scrutiny, hence prompting the frequent accusation of cultivating a culture that ‘lacks transparency’.
With the growing number of disputes in football and their changing nature, FIFA in recent years have embarked on a number of legal and governance reforms, and just one of these is the relatively new FIFA ‘Football Tribunal’, of which the ‘Agents Chamber’ is just one element.
The introduction of the ‘Agents Chamber’ by FIFA not only highlights the increased role and influence of agents in the football industry, but also arguably the increased number of disputes involving football agents and disputes relating to football agent matters.
However, without going into too much detail of the technicalities and details of the ‘football tribunal’ and related matters, I severely doubt whether it is enough or able to cope with many of the disputes that ‘come to pass’ on agent related matters.
Was 2015 a 'Dress Rehearsal' for an Increase in Agent Related Disputes to Come Now?
Not much remains to be said about 2015 in agent regulation terms, as the deregulation of football agents by FIFA (with the implementation of RWWI : ‘Regulations on Working With Intermediaries‘) was an unmitigated disaster, whether people foresaw this or not.
Combined with the growing influence of agents, the lucrative football industry (including for agents), many of those specialising in the niche market (at the time) of sports law, and football law back then, predicted an increased number of disputes relating to football agent matters (if not understandably ‘rubbed their hands together’ behind closed doors) and they were without doubt correct in their predictions.
Around that time, you could count the number of specialist ‘football lawyers’ quite easily and none were really well-known names outside of legal circles and football governance ranks. Yet, in the 8 years since the deregulation of football agents, the number of ‘football lawyers’ has grown hugely, and some of the original lawyers and barristers specialising in the football sector are now arguably more well known than many of the prominent agents they have been representing.
Don’t get me wrong, these well-known specialists have largely earned their accolades, notoriety and recognition. At times they have had to adapt as much to this ‘strange new world’ as anyone else; and to some extent they have played pivotal roles in moulding not just laws and regulations relating to football, but also the culture and standards, if only to ‘plug the gap’ left by FIFAs deregulation of the football agent industry in 2015.
Order, Counter Order and Disorder from the Football Authorities, Will Lead to ‘Overdrive’ for Football Agent Disputes
As if the deregulation of football agents by FIFA in 2015, and the subsequent disarray and increase in the number of disputes relating to football agents and agent related matters wasn’t enough, I firmly believe that the introduction and implementation of the new FIFA Football Agents Regulations (FFAR) in 2022/23 will send agent related disputes in football into ‘overdrive’.
Whilst I could go into great detail on my reasoning for this prediction (as well as notable signs of this happening already), I believe it is important to present the case for such reasoning – the following are just a small selection:
- The break-up of agencies and affiliations formed under the backdrop of 2015 deregulation, and thus establishing who is the rightful agent and who isn’t.
- A new generation of unlicensed agents who were previously intermediaries. Hence, are their existing contracts with a client still legally binding, when does it expire, their commissions due and the freedom of a client to seek alternative representation.
- The implementation by FIFA of their ‘client pays model’ will lead to disputes over who is responsible for the remuneration of the agent(s), the value and by what means.
- The fragmented nature of the regulations and the implementation between nations, leagues and jurisdictions – leading to an uncertainty as to where a dispute is to be resolved.
These are just a selection of some of the potential reasons why the disputes relating to football agents, may well now go into ‘overdrive’ in the football world, leading to huge costs, frustrations, acrimony and uncertainty.
An Overstretched System
Not for one minute do I believe the football authorities intentionally make life difficult for all participants and stakeholders when it comes to resolving disputes, there may be other motivations as to why the decisions taken and provisions made arguably aren’t as good, as effective or as efficient as they could be.
However, the implementation of the new FFAR will bring to the fore disputes relating to agents that the new football regulatory framework will be unable to hear …. let alone actually adequately resolve for many reasons.
Whilst some may rightly say there are now the right legal minds available to help resolve these disputes, I would agree in one sense but disagree in others. The leading lights in that fraternity are still a ‘rare breed’ in truly understanding the nuances of football disputes and then, fewer truly understand the agent’s world. Hence as demand grows, and their time becomes even shorter; costs will rise and delays occur. Also, it is worth remembering that these same legal experts may well also come to rely on the aforementioned overstretched football dispute resolution mechanisms for these disputes
The Solution is the Football World Embracing Mediation to Resolve Disputes
As I (and others) have stated on many occasions, ‘mediation’ is a concept that is so widely misunderstood and underappreciated in the commercial world, and I would say even moreso in the football world.
Even FIFA have gone as far as ‘TRYING’ to introduce a mediation panel as part of their dispute resolution framework, but as I wrote about in a previous article (FIFA ‘Mediation’ : True Mediation or Arbitration ‘on the Cheap’?) I have severe doubts as to whether FIFA truly understand what ‘true’ mediation principals are. Hence, I believe this quasi-med-arb model or hybrid mechanism from FIFA is a means for them to undertake ‘arbitration on the cheap’, and retain control and oversight of the dispute rather than let ‘mediation’ truly do the job for which it is designed and resolving the dispute’
Mediation Will Not Work for All – Especially the 'Blinkered'
One word of warning however, is that mediation, due to its nature cannot be applied to every dispute; it needs the parties to any dispute to be fully willing to partake in the mediation process sincerely with a goal of wanting to resolve the dispute through the mediation process.
Hence, having worked in football for many years now, I fully appreciate that for some, the ‘need to win’, ‘save face’ and even ‘have their day in court’ is what they put ahead of costs, time, effort and actually resolving a dispute.
Yet, when those involved in football agent related disputes start to realise that there are alternatives to resolve disputes that save time, save money, puts them in control, and also undertake such processes confidentially ………… they will ‘wake up’ to mediation.