28 Sep 23
The FIFA Football Agent regulations (FFAR) should have ushered in an era of consistency, with one licence which would have allowed agents to operate globally under common rules. Instead, the FFAR has been the spark for widespread global litigation and confusion within the football agent regulatory space.
The full implementation of the FFAR was supposed to be on 1 October 2023, when some of the more controversial provisions of the FFAR were due to come into force (including commission caps, limits on multiple representation and the requirement to only use a licenced FIFA agent).
However, come 1 October 2023, 4 of the 5 major markets in European football will not be implementing the FFAR in the form envisaged by FIFA, causing further inconsistency, uncertainty and chaos.
Below is a summary of the current state of play.
England – The FFAR will not come into force on 1 October 2023 (NFAR implementation delayed).
The FA Rule K arbitration proceedings brought by agencies CAA Base, Wasserman, Stellar and ARETÉ has now concluded, but the Tribunal has confirmed it will need 1-2 months to hand down its decision.
Pending the Tribunal’s decision, the start of any NFAR (the domestic version of the FFAR) has been delayed (to the extent upheld by the Tribunal) until the earlier of:
(a) 30 November 2023; or
(b) the handing-down of the Tribunal’s award (if earlier than 30 November 2023).
Until the decision is handed down, the current/existing FA intermediary Regs will continue to apply. Therefore intermediaries will need to continue to be registered as an intermediary by The FA to conduct intermediary activity in England. A FIFA Agent licence alone will not yet be valid. The caps on commission will also not apply (yet).
Germany – The FFAR will not come into force on 1 October 2023.
In Germany, a court injunction prevents the FFAR from coming into force until further notice. FIFA have recently released a statement on this but, in short, the FFAR will be suspended in its entirety for all transactions with a ‘link to the German market’. This will be deemed to exist as soon as any party to a transfer (agent, club, player or coach) has a link to Germany. There is some uncertainty as to how far this extends, as it has yet to be tested, but it could apply to a transaction in the UK concerning a German player, or a German agent working on a deal in the UK. This could leave agents with any link to Germany (or any agent working on German transfers) in a more favourable commercial position.
Italy & France – Mandatory national law will affect the extent to which the FFAR are implemented.
Both Italy and France have their own domestic laws which govern the activity of sports agents and may override certain aspects of the FFAR. This means that only a limited version of the FFAR will be implemented in these countries. In France, the French Football Federation intends to continue with a 10% commission cap, while dual-representation will continue to be permitted in Italy in certain cases.
Other jurisdictions – FFAR applies from 1 October 2023.
For most other countries, the proposed implementation of the FFAR is due to go ahead on 1 October. This suggests that some countries will be operating under the FFAR and others will be under their national laws/existing regulations.
The challenges faced by FIFA in the implementation of FFAR on a worldwide basis shows the difficulties of implementing contentious regulations globally.
What does this mean?
There is still a lot of uncertainty. Even before its proposed implementation date, the FFAR is either limited in scope or unenforceable for 4 of the 5 major markets in European football. Given the exemption in place for transactions with a link to Germany, if the English arbitration decision, due in November, determines against the implementation of the FFAR then FIFA may need to apply the same exemption to the English market. If this occurs and if the exemption in Germany remains in the longer term, FIFA ultimately may need to review and reconsider the regulations, otherwise transactions will become increasingly complicated and the transfer market may be distorted as a result.
There are still many unanswered questions, however the next key milestones seem to be the pending FA Rule K arbitration outcome and the European Court of Justice decision. Both will have a huge impact on the future of the FFAR.
The immediate question is whether FIFA will take time to pause, and delay the implementation of FFAR until some of these matters are resolved?