FIFA’s Agent Consultation: An Elaborate PR Stunt? And The Legal Implications of the New Regulations

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Introduction

In this blog I will explain how, since 2018, FIFA has documented several ‘consultations’ between themselves and with agents from all around the world to discuss and review the proposed new regulations for agents in the industry. As well as simply explaining what has happened, I will also share my concerns and my experiences with how the governing body in football have conducted their operation. In doing this I shall highlight the errors that they have made and expose the process to predominantly be a publicity stunt to lure those with an interest in the good of the footballing world into the false belief that the new regulations are adequately informed and adapted in line with the best interests of football and agents to achieve its aims. I will also consider how the legal implications of the regulations may develop within a European Court of Law.

Dictionary.com defines a consultation as a meeting for deliberation, discussion, or decision held as a conference. Conference also indicates that two or more parties ‘confer’ between one another over a certain topic. A properly conducted consultation takes the form of a two way process and discussion, allowing stakeholders to give each other advice and assistance. Throughout this blog, it is important to remember therefore, that the aim of a consultation is to provide a platform from which parties can express opinions and give feedback on an issue. The result of a consultation is compromise and adaptation of the original plans to achieve the greatest, most effective, efficient or successful outcome.

The Consultations

Many agents from around the world, including several of the biggest names in the industry, arrived for the first agent consultation with FIFA in Zurich in 2018. They held high hopes and anticipation for the opportunity to have their voices heard in front of the major stakeholders in the game; FIFA, FIFPro, UEFA and the European Club Association amongst others. Whilst agents are not currently stakeholders in football, they play a large part in the industry and this seemed like the chance to come face-to-face with the decision makers in football and influence the future for agents. The importance of the consultation was reflected by the attendance of Pini Zahavi, Rob Jansen, Giovanni Branchini, Richard Motzkin and Mino Raiola. The general feeling towards football’s stakeholders was a satisfied and hopeful one. It was an encouraging sign that the stakeholders in football were allowing agents to express their concerns, worries and feedback on the proposed regulations for agents that the lawmakers were set to bring in.

Although some agents were against any regulation at all, most agents, including myself, agreed that new regulations in the industry are needed to raise the ethical and professional standards of agents globally. The motivations behind and fundamental aims of the changes in regulation were also agreeable. Outcomes such as increased transparency, licensing, education, enhanced player welfare and stability as well as a centralised system to monitor transactions are all concepts that will improve agency and protect our rights (such as claiming commissions from clubs directly through FIFA) and football as a whole. For example, foreign players‘ incomes are protected and ensured by FIFA, this should now be the same for agents and their remuneration. However, for the regulations to be effective and successful in their aims, they must be reasonable, fair, legally correct and feasible to implement. For this to occur, agents themselves must be involved in the process of developing the new legislation. In 2018, the agents that were invited to Zurich were under the impression that the consultation was for exactly this; for them to express their opinions and help inform FIFA and other stakeholders of the best ways of implementing new regulations on the industry.

The Reality

The first meeting in Zurich was framed by FIFA’s ‘Task Force Transfer System’ as a ‘collaborative and constructive’ review of the regulation proposals. FIFA and football’s decision makers and stakeholders were present and agents directly faced them during the conference. Little did we know, this was the only time we would actually meet face to face with those that could make a decisive difference and change.

From the second meeting onwards, rather than the two way dialogue that should occur during the consultations, it seemed that FIFA had already decided on the regulations and were simply telling the agents what was going to happen. There were no actual decision makers in attendance. However, they continued to publicise the meeting as ‘collaborative consultations’.

The pattern continued in the future meetings but FIFA seemed even less willing to collaborate with agents. Despite the promise that agents would be able to meet face-to-face with football’s authorities and stakeholders again, future meetings involved only representatives. This meant that even if they did listen to any of the concerns raised by the agents in attendance, there was unlikely to be any changes as the information and solutions had to be relayed through to the decision makers who were unlikely to listen to second hand accounts.

At my final meeting in January of 2022, after I had made my intentions to leave clear, I was promised that if I remained part of the consultations then I would be able to meet with decision makers and stakeholders at the final consultation in February. I trusted my instinct, stepped away from my role at ProFAA and my fears were confirmed when no stakeholders were in attendance at the next meeting. The reason given for this was that they decided they did not want to confront agents directly. This was problematic and confusing as it was assumed that agents and the stakeholders were going to work in conjunction towards a positive outcome.

An additional issue that arose from January’s meeting was that agents rejected FIFA’s request for permission to publish media and photos from the consultation. Despite their objections and a decision not to grant them permission, FIFA published material in another bid to publicise their ‘collaborative’ and ‘cooperative’ attitude towards these consultations with agents.

FIFA’s advertisement to the media and to the public that they were holding consultations was misleading. They pushed a narrative to football fans and to other stakeholders such as the EU Commission that they were cooperating with agents to protect their interests and ensure the regulations would not be damaging to them. The agents were being used and manipulated as part of an elaborate publicity stunt. The false reality of collaboration was showcasing FIFA as adapting their regulations after consideration of agent feedback. The performance was published through a rose tinted lens in order to gain the backing of stakeholders.

FIFA claimed that several proposals given to them by the agents in attendance have been implemented into the new regulations set to come into force this year. However, the distorted truthfulness of this situation was identified by many agents. For example, this claim had been published by FIFA following the most recent ‘consultation’ at the end of January 2022. Leading agents have questioned the robustness, genuineness and sensibility of this meeting as it occurred just days before the end of the winter transfer window. Many agents who would have had vital and significant opinions on matters would likely not have been able to have attended such a meeting as they would have been too busy with their clients at this stage in the window. Certain agents labelled this consultation fake as it was with only representatives from FIFA rather than authorities and only agents who weren’t currently engaging in business so could not give an informed challenge to the regulation proposals.

For a consultation between agents and the stakeholders, there must be an accurate reflection and representation of agents worldwide. The stakeholders gave this impression despite only really accessing less than 1% of agents who would adhere to their agenda. The false representation of agents was demonstrated in the ‘made-up’ unions that they claimed to be a part of. This has been the case for representatives from Africa, Asia and most recently, South America. This allowed FIFA to claim they were working alongside agents globally. The decision makers were claiming to be meeting agents from ‘every continent’ and major footballing countries. This was misleading. The process also pitted agents against one another as FIFA suggested that the opinions of agents given in the consultations would be used as litigation in future against other agents. Agents have different opinions but they are all in the same industry and hope for the same rights. It is important that we do not allow agents to undermine and battle one another using their own opinions against each other.

ProFAA, the organisation that I co-founded and left in January, intended to represent and educate agents worldwide. We also had the desire to become a stakeholder in football and I emphasised education for our members to improve the industry. As the consultations progressed, it became clear that ProFAA was simply used as an instrument to aid FIFA’s publicity stunt. The association was made up of a large contingency of upcoming agents and students, which outweighed the number of licensed agents in the association. It is an educational platform for those aspiring to become a part of the agency industry, other than a handful of well established agents.

The Problems

As I have noted, the fundamental motivation and aims of the new regulations are admirable and encouraged. However, without “real” or “proper” active agents as part of the process of developing and adapting the regulations, there is little hope that they will be implemented successfully and effectively. In my personal opinion, FIFA does not have enough of an understanding of the agency industry.

With the consultations so far being used simply for FIFA to make themselves look good and well-informed to external stakeholders, this has created this exact problem. The stakeholders have shown a stubborn unwillingness to discuss or compromise on the proposed regulations. The lack of collaboration will ultimately result in damaging consequences for the industry. The regulations that will be implemented will be flawed and fail to have the desired effect as FIFA did not cooperate with agents who were expressing reasonable solutions and adaptations to the issues that will arise as unwanted outcomes from these regulations.

The Legal Side

One likely reason why FIFA have utilised these false consultations to appease football fans and stakeholders is in case they are required to defend themselves and the new regulations in a court of law. It is highly likely that agents and agent associations will oppose the regulations such as the commission caps and the appeal may be filed in court to judge whether the proposals are in line with European Law. There are several main lines of argument that agents will turn to to object to the new regulations:

1. The proposed regulations undermine European Competition Law. A hard cap does not adhere to competition law. The hard cap entails that any deal worth above $200,000 must be capped at a maximum 3% commission. It would drive the majority of agents out of the industry and lead to an oligopoly. Any suggestion of a tiered system must ensure fairness and bracketed price ranges to allow for a reasonable commission rate.
2. It breaches antitrust law. This is where agents will argue that the harm to competition is greater than the benefits it brings to football.
3. The regulations place a restraint on trade in a free market.
4. FIFA is guilty of abuse of their monopolistic power over football’s governance.
5. Restrictions on freedom to provide services and agree contracts.
6. FIFA has not followed its own rules and procedures for developing and implementing these regulations. The consultations were not robust nor conducted appropriately for a fair collaboration with properly representative agents.

The process is likely to begin in a European civil or commercial court or even through the Court of Arbitration for Sport (CAS). However, it is possible that this dispute will be elevated to the European Court of Justice, just like the Bosman Ruling Court Case in 1995. It will inevitably be a difficult and complicated case. Agents will be faced with the challenge of battling in court with the global powerhouse of football, FIFA.

FIFA will be confident in their defence of the regulations. They are likely to use the ‘consultations’ as evidence that they have adequately cooperated with agents and considered their feedback and adaptations to the regulations. However, this argument is flawed. As I have explained, FIFA have led a false consultation process that has involved agents that are not established and have only accessed less than 1% within the industry. I would argue that this shows FIFA to lack the competence to regulate agents. Even if the process was a proper consultation, speaking to such a minority of agents and those that aren’t well-established does not give FIFA the grounds for authority. They would not have the competency to govern Lawyers or Doctors in football, so why do they have the right to govern agents when they are equally uninformed? The agency industry is outside of the football sphere that FIFA understands and comprehends. This is why a fair and proper consultation process would have been of monumental benefit, yet they failed to capitalise on such an opportunity.

FIFA will also be required to show that the regulations are being brought in for sufficient reason. The main aim is to reduce the abuses in the agency industry and improve transparency. With over €2.6billion being paid in agency fees over the last three years, FIFA also believe there is a need to limit this. However, these fees have risen proportionately aligned with rising transfer fees and player salaries, as would be expected in a free market. FIFA must prove that these regulations are therefore fair, proportionate and in the public interest. In my opinion it seems that these regulations will fail to reflect the free market rise in agency fees and goes beyond the bounds of proportionality and reasonableness. Furthermore, whilst official statistics and financial reports may appear more favourable initially, it is likely that the regulations will cause a rise in ‘kickback’ payments and unofficial remuneration which is not beneficial for football and fails to meet FIFA’s aims.

The fact that FIFA does not consider itself as involved in the production and distribution of goods may be used to undermine the accusation that the regulations breach European Competition Law. However, there has previously been an example of when this argument failed to hold up in court. In 2015, a German agency took the Deutscher Fussball-Bund (DFB, the German Football Board) to the national court over a similar attempt to limit the money that agents were able to make through German football clubs and players. The German court voted in favour of the agency as it agreed that regulating and restricting earnings was not coherent with European competition law. It is possible that FIFA will face the same legal proceedings and outcome with their current proposal.

Summary and Unanswered Questions

In summary, it has been confirmed that my decision to step down from my role with PROFAA was justified and my fears were true. Once I had left, I was replaced immediately by someone who is not an agent and has a minimal understanding of our business. This made it become clear that ProFAA was not as independent and effective as I had previously believed. I accepted that the consultation process was not a fair one. PROFAA was simply being manipulated and publicised as a tool or instrument for FIFA to give the false impression that they were collaborating with agents to achieve the best outcome. I have demonstrated that this is far from the truth and that stakeholders and agents never truly met and ‘consulted’. I urged ProFAA to walk away from the consultation as a united association to take a stand against FIFA but ultimately it resulted in my own personal departure.

FIFA holds the authority of rulemaking in the beautiful game but I question whether they are competent enough to regulate agents for the benefit of the game. I examined the legal implications of the proposed regulations and I await seeing how this case might unfold in court.

There are several unanswered questions that are yet to be explained by FIFA and football’s decision makers. I would like to pose these now as my concluding thoughts. The consultation and the new regulations seem to fail to address these queries:

1. Why are the stakeholders not directly involved in the consultation process?
2. Why are agents that represent clubs capped at 10% commission whilst player agents at only 3%?
3. Are agents that represent clubs more valuable?
4. Is it time to separate club agents from player agents? Are club agents more consultants so they should not be regulated in the same way as player agents?
5. Why are the regulations solely directed at regulating agents rather than including limitations for club officials such as sporting directors who can currently earn and pay themselves bottomless bonuses?
6. If you cap agents, shouldn’t you also cap the entire football economy? For example, players income, coaches income, club officials income…
7. Why are they claiming to consult agents worldwide whilst less than 1%, many of which are not fully established and inadequate representatives?
8. Are they planning to use the “consultation” with these agents against others once the matter is disputed?
9. What are their reasons and motivations behind putting out media and publicity projects without the permission of agents?

Despite FIFA’s inability to hold constructive consultations and cooperate with proper agents from around the world, they have created their own executive programme in football agency. FIFA charges a substantial cost for this programme and are more than happy to receive money from the agents around the world but are far more reluctant to collaborate with them in order to improve football.