Can A Simple Clause for Football Agents Save Time, Money and Headaches with Disputes?
(for both the agents and their clients)?
7th July 2023
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):
- ....... already know how time consuming, expensive and complex the process is.
- ....... soon after they started to engage in the process, begin to realise how costly, time consuming and complex it would be …… usually prompted after a couple of invoices from their legal advisers.
- ....... want to get the dispute resolved rather than have the process ‘drag on’ and cause distraction, if not damage their reputation and career path.
- ....... in some cases, not want the attention of the likes of FIFA (or other authorities) to be aware of the dispute and some of the actions that they may (or may not) have undertaken which may trigger an investigation.
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)?
Agents Try to Avoid Disputes at ‘All Costs’, Not Just THE ‘Cost’
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.
Are Prescribed Football Dispute Resolution Mechanisms Good or Bad?
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.
Do Agents Resent Football’s Prescribed Dispute Resolution?
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.
The Option to ‘Opt-Out’
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.
A Simple Mediation Clause in Representation Agreements/Contracts
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.
The Benefits of Mediation in a Football Agent Related Dispute
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:
- COST – mediation is typically a lot cheaper than the normal and prescribed arbitration-based football dispute mechanisms (e.g., DRC, NDRC, CAS)
- TIME - mediation can be undertaken at short notice (weeks, if not days), whereas football dispute mechanisms typically take a substantial period of time (months, if not years) to be ‘heard’ (let alone a judgement passed, or an award be made).
- CONFIDENTIALITY – the process of mediation is largely confidential. Unless the parties decide to divulge details of the mediation or settlement, matters remain confidential. Therefore, in cases that the undertakings of the parties to the dispute may be ‘questionable’ and they may not want them divulging to the football authorities, this can be stipulated. Only where matters are illegal or those where the mediator thinks matters may be a safeguarding issue, will such matters be divulged.
- WITHOUT PREDJUDICE – whilst the objective of mediation is to reach a settlement between the parties in dispute without the need to revert to arbitration or litigation, this cannot always be guaranteed. However, in addition to mediation typically being a confidential process, it is also ‘without prejudice’, and as such, matters of the mediation cannot be used in any subsequent arbitration or litigation proceedings (with the exception as to whether mediation has been attempted or rejected).
- INDEPENDENT (no judgement) - the mediator is (typically) an impartial facilitator of the process, they are not a judge or assigned representative of either party and therefore there is no judgement in the process beyond that of the participants own judgement(s).
- CONTROL – I think it safe to say that many football agents (as with other football participants) favour being ‘in control’ of the situation. As such, mediation facilitates this objective, as the process is voluntary and the settlement is solely in the hands of the participants to reach a mutually satisfactory settlement (agreement) to resolve the dispute.
- VERSATILITY – my experience of football agents (and other football participants) is that they are incredibly creative, especially when it comes to negotiating, solving problems and sourcing alternatives. Hence, mediation again ‘fits this profile’, whereby it allows for the participants to develop their own settlements and agreements to resolve a dispute, rather than be restricted to those of formal process such as litigation and arbitration with prescribed and limited rules, regulations and sanctions of the football authorities (and CAS etc).
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.