One of the biggest frustrations and concerns for many football agents is that of what happens if they become embroiled in a dispute with a client (i.e., player or club) or another football participant (e.g., another agent). This isn’t so much on the basis of the dispute alone, as this can be resolved by the parties themselves, but what happens should the parties to the dispute not be able to come to a resolution by themselves (i.e., through negotiation or conciliation)?
I will ‘hold my hands up’ and admit that in the past, during my time as a Football Agent (Intermediary), I have used the ‘suggestion’ of the football dispute/arbitration proceeding (e.g., Rule K in England with the FA) to my benefit when in dispute with another football participant (e.g., player, club, agent). It was not so much a ‘large stick’ to threaten, but moreso a means of saying “if you want to do this, then let’s do it properly”.
In general, such an approach usually worked (especially in lower value disputes) without even getting to the stage of a ‘hearing’ or the filing of ‘case’ papers, as the other party would (either):
Just as an example; in one such case, a player refused to pay the agent commissions due to me as was clear and defined in the player-agent representation agreement. Eventually he relented and agreed to pay an already reduced settlement amount I offered prior to the dispute (as a gesture of goodwill).
HOWEVER, it later became apparent that he had seemingly paid more in legal fees over a few months than was the offered settlement terms – in hindsight maybe I should have pursued the full amount (for the initial obstruction)?
One of the reasons why many agent disputes with clients (whether clubs or players) may not be publicised, is not solely for the fact of enforced confidentially, or, as previously mentioned that it is not cost effective to pursue a resolution through more standard and prescribed football dispute resolutions – but the requirement to minimise costs beyond that of the actual dispute at hand.
Many such disputes are seemingly resolved through a private agreement, whether it be an unpublicised ‘pay-off’ or a ‘gentleman’s agreement’ for future collaborations, but one of the main factors in disputes being largely unresolved is for that of protecting reputation in a highly competitive industry.
If an agent were (as a claimant) to pursue a claim against a client, they run the risk of damaging their own reputation in terms of future clients both in the immediate/short term, and also the longer term. Whereas if the dispute is reversed (with the agent as the respondent), then the damage impacts less on the other party as the claimant, after all agents are always a convenient ‘bad-guy’ when things go wrong.
As with any professional contractual agreement it is standard practice to be clear on the agreed terms for matters relating to potential disputes (e.g., applicable ‘theatres’ for dispute resolution, governing laws, jurisdiction). As such, it is perfectly reasonable and sensible for FIFA and other football authorities to define a default set of terms in the first instance, and thus offers the parties to the agreement a certain degree of ‘protection’.
With it rumoured that FIFA are indeed looking to develop a new standard representation agreement between agents and their clients to coincide with the implementation of the new FFAR (FIFA Football Agent Regulations) subject to various legal challenges that are ongoing (as of July 2023), this does not fill me with a great deal of confidence. Yes, such an approach is to be encouraged, given how many substandard agent representation agreements have been used for many years (both before and after 2015). However, for anyone who had knowledge of the standard agreement template that FIFA developed pre-2015 for player-agent agreements, they will recall this was a very threadbare, arguably a poor and weak template for agent agreements, and was just shy of few sides of A4.
In my experience there is quite a lot of resentment amongst the football agent fraternity towards the prescribed dispute resolution mechanisms from the likes of FIFA, as many of the disputes they will find themselves facing could quite easily be solved through the likes of the courts, as with any other civil or commercial disputes.
In instances whereby an agent is owed a relatively small amount by a client, there is a tendency for the agent to write off the losses however strong their claim/case may be, as the costs of getting to the point of a ‘hearing’ through footballs prescribed dispute mechanisms, far outweighs the amount that they may actually be owed.
Hence, the resentment towards seemingly being controlled by the football regulations and not allowing the agent and a client to mutually agree on chosen dispute resolution process(es) is quite apparent. Or, is it somewhat down to the matters I highlighted in the article ‘Does Football Avoid ‘Airing its Dirty Washing in Public’ with Fixed and Prescribed Dispute Resolution Options?’ ….. BUT does this need to be the case, or could they even opt ‘out of’ such processes in the first instance.
It wasn’t until a recent FIFA ‘Football Law Annual Review’ (FFLAR) when I heard it was legitimate and permitted for a football participant to ‘opt-out’ of a prescribed FIFA dispute procedure. Granted, this was not in terms of participants ‘opting out’ of a dispute being heard within FIFA’s or football’s framework, but was in terms of the parties ‘opting out’ of the FIFA DRC (Dispute Resolution Chamber) for a dispute of an ‘International Dimension’, in favour of a NDRC (National Dispute Resolution Chamber).
However, if this approach to the DRC is permitted by FIFA, if ‘explicitly’ declared in a contractual agreement between the parties and mutually agreed, with the subsequent ‘fall-back’ arrangement being to revert to the prescribed mechanisms if the dispute was unresolved in the first instance is permitted, then, what is there to legitimately forbid parties stating in an agreement that they will ‘opt out’ of FIFAs prescribed dispute mechanism in the first instance, in favour of any other widely acknowledged dispute resolution mechanism?
Subsequently this opens up a far more conducive, productive and sensible option to football agents and their clients through the implementation of a simple ADR (Alternative Dispute Resolution) clause in the contracts/agreements between agents and their clients.
So, with this in mind it seems perfectly feasible, legitimate, lawful and permitted for parties to a football related agreement, to explicitly ‘opt-out’ of the standard dispute resolution mechanism prescribed by FIFA or any other related football governing body (e.g., National Football Association, such as The FA in England).
Whilst ‘pistols at dawn’, or a ‘fight to the death’ is not an option for obvious reasons (although may be rhetorically referenced by some in the more antagonistic agent disputes), if they so wish a game of chess or ‘rock paper scissors’ if defined adequately, could be a means of dispute resolution.
Whilst the above suggestions may be feasible, they are not a sensible means to resolving a contractual dispute between a football agent and another football participant. Hence, the solution may lie in the parties agreeing to enter into mediation as the first option for dispute resolution, as a more cost effective, expedient and confidential process than many other forms of dispute resolution.
With an increasing number of nations acknowledging the ‘Singapore Convention’ and the subsequent enforcement of mediation settlements around the world in various courts, this is further enhanced by the fact that FIFA now also recognise mediation as a suitable means of dispute resolution in football disputes. Not least as in 2022-2023 FIFA established their own ‘mediation panel’ and mediation procedures for disputes within FIFA. Although, I argue that the form of FIFA mediation outlined thus far, ‘falls short’ of what I (and many others) consider to be ‘true’ mediation.
Without going into too much detail as to the benefits of mediation for agents involved in football disputes (not least as it is detailed on www.footballmediation.com and also in other articles I have written), the benefits are clear and obvious once people understand what mediation is – but therein lies the problem.
The simple matter is that mediation is hugely misunderstood, and football is not alone in this ignorance. All of the benefits that come from mediation are often distorted, miscommunicated or misunderstood and subsequently mediation is not always utilised or thought about in disputes where it could be hugely beneficial.
The simple matter is that mediation can provide many benefits to agents when it comes to disputes, these include:
All of this can be achieved by agents in inserting a relatively simple mediation clause in their representation agreements that arguably not only benefits them, but also their clients, other football participants and I would argue even many of football’s own dispute mechanisms.
If you want to find out more about mediation in football, and how to apply ADR (Alternative Dispute Resolution) Clause in agency agreements then please do not hesitate to get in touch www.footballmediation.com to find out more.