Another Potential Agent Storm Brewing for the Football Authorities? - Not FIFA this time, but National Associations such as The FA
Jonathan Booker
Resolving Costly Sports Disputes Before They Escalate | In the business of 'score-draws', and avoiding expensive 'losses'.
Football Authorities and Agents Could Be Colliding on Issues Past, Present and Future
Whilst the football authorities and agents are potentially on a collision course with regards to the proposal of new FIFA football agents, there is potentially another storm brewing for the football authorities. Yet in this case I don’t mean FIFA, and I don’t mean with regards to what is possibly to come in the future, but in terms of what has gone before and is still in existence today.
Whilst FIFA joust with various factions of the football agent community, some arguably more liberal and diplomatic than others over the new FIFA Agent Regulations that are due to be introduced in the Summer of 2022, it seems that some national football associations may well have their own problems to contend with, when it comes with a dispute with agents.
The More Recent History of Football Agent Licensing (and Regulations)
As some may not know the more recent history when it comes to Football Agent regulations, I will try and give you the briefest synopsis.
Prior to April 2015 there were various forms of the agent regulations and licensing systems set out in the main by FIFA as football's world governing body. These were implemented by the National Football Associations in various forms, taking into account their own enhancements and national laws in their respective territories (countries). This typically included an exam, the agent holding professional indemnity insurance (or a bond with FIFA) and in many cases some form of criminal/character records check.
However, in 2015 the old regulations and licensing system were ‘abandoned’ by the old FIFA regime and replaced by the ‘FIFA Regulations on Working with Intermediaries’ (RWI), agents were effectively no more (in language) and intermediaries took their place.
national football associations regulating football intermediaries leaving a confused and fractured regulatory system for regulating football agent activity
For many of us working in (or around) the football industry at the time; whether agents, club officials, regulators or other stakeholders many saw this as a disastrous decision and this has proven to be the case, yet now, thankfully the new FIFA regime have recognised this error and are making strident efforts to implement a new and effective Football Agent regulatory and licensing system once again.
The decision implemented in 2015, ultimately left football with a ‘headache’ of astounding proportions which affected so many participant and stakeholder groups (e.g., players, clubs, agents, associations), and despite a watered-down regulatory framework (RWI) set out by FIFA for ‘Intermediaries’ it was ultimately down to the national associations to regulate intermediaries at a domestic (national) level.
Without doubt the changes in 2015, left a fractured and confused industry and regulatory system when it came to the regulation of football agents (intermediaries), as national football associations chose to implement different approaches in their newfound power and requirement to regulate intermediaries. For example:
The ‘Hangover’ from ‘Best Endeavours’?
Now, whatever my views (or those of others) on the decisions made by FIFA in 2015, the national associations and others at that time, they are irrelevant. We would like to think that the decisions taken were to make best endeavours to address a situation effectively, both at the time and since ……… so where is the problem?
Having experienced, observed, read and heard of many of the failings in the effective regulation of intermediaries (football agents) since 2015, I believe that there could be grounds for disputes between many stakeholders including agents, players and clubs with national associations in how the Intermediary regulations have been implemented and the way regulations have been upheld since 2015.
National football associations who charged agent registration fees then didn’t implement effective regulations and licensing procedures, could be in a difficult and costly position.
The fact is, I would go as far to argue that those national associations who have done an ‘acceptable’ minimum in trying to effectively uphold and implement FIFAs ‘Regulations on Working with Intermediaries’ from 2015, with no additional licensing or regulation, are possibly best placed in terms of avoiding any complaints or disputes (whether this is just or unjust).
On the other hand, those national associations who took it upon themselves to charge registration fees to agents (both initial and annual) whether they relied on FIFAs basic framework for intermediaries or implemented their own additional regulations and licensing procedures, could find themselves on a very ‘sticky wicket‘ indeed, if not a costly one.
Fractured System Makes the Landscape Unclear
I would confidently say it is impossible for any one person to pass judgement on every national football association in terms of whether they have effectively (or fairly) implemented Football Intermediary (agent) regulations since 2015. As I mentioned earlier, the disparity in approaches, licensing, fees and implementations has varied between national associations.
I do however, believe I can offer my opinion on my own main national football association in England; The Football Association (The FA) and I am sad and disappointed to say they have seemingly failed in many ways in their duty to regulate and support Football Intermediaries (agents) since 2015, and could well have left themselves open to legal recourse, should someone wish to take up that challenge.
A 'Duty of Care' Not Just to Players, Clubs and Leagues but also Agents/Intermediaries
What has consistently been stressed when referring to football agents (intermediaries) and their relationship with clients (whether clubs or players), is their ‘duty of care’ to the client. ‘Duty of care’ and ‘fiduciary duty’ is a something that reaches far wider than that of just football, and has a place in most industries and communities as it is enshrined in law.
Now, what happened post April 2015 is that some national football associations (the English FA included) chose to impose a registration (and annual fee) to be a registered intermediary, which on the face of it is not an unreasonable demand, should this allow for better regulation, better processes, more support and improvement for all involved not just the intermediaries (agents).
However, it could be argued that some national associations took the additional finance as an opportunity to boost their own ‘coffer’s, with arguably little (if any) improvement on what existed prior to 2015. In fact, some may argue a national association may have taken retrograde steps post 2015 in the regulation of football intermediaries under the new regulations.
Did some National Football Associations fail to uphold a ‘duty of care’ to players, clubs and agents?
In fact, many agents did not mind paying the fee as they (i) believed it would mean improvements, and (ii) for those licensed prior to 2015 they didn’t have to pay out for large Professional Indemnity Insurance (PII) policies, that were required under the regulations (to effectively protect their clients’ interests).
Before I continue, I am not a lawyer and by no means a legal expert, but when registering as an intermediary you effectively ‘sign’ a declaration and pay a fee to the FA to register, which in return they authorise you (or not, rarely) and they uphold the regulations to which you have agreed in your declaration.
As such it is seemingly fair to assume that the process(es) results in a contractual agreement being concluded for which the fee(s) paid constitute ‘consideration’ in a legally binding context.
So, with this in mind, which groups could the likes of the FA seemingly have failed in their ‘duty of care’ when regulating and authorising football intermediaries (agents)?
Agents Pre 2015
The first group to consider here, is the category that I fall into, and that is those who prior to 2015 were Licensed Agents (or authorised agents) and in my case ‘Licensed by the Football Association”.
I don’t think I am alone in the belief that a large proportion of this group feel they have been failed by The FA in effectively regulating the industry since 2015, or even just upholding their ‘duty of care’. Some may even argue the system is no better (if not worse) than in 2015.
Many of those who operated prior to 2015 in a better regulated and licensed environment have chosen (or been forced) to leave the industry given the flood of unlicensed, ill-informed and largely unregulated intermediaries who entered the industry post 2015 (many of whom operated as unlicensed agents pre-2015).
2014-2015 Prospective Agents - who became Registered Intermediaries
Back in 2014/2015 I held the position as General Secretary of The AFA (Association of Football Agents) in the UK, and at that time not only did I take many enquiries and have conversations with registered agents about the changes in the regulations and subsequent licensing, but also took a lot of queries from those looking to become football agents and the process that they should consider undertaking.
Given the minimal level of understanding of what the new regulations would look like, even for people like myself with a slight ‘inside track, it was almost impossible to predict how things would pan out. Not least as there were threats of legal action against the likes of FIFA and the FA over what many saw as ‘deregulation’. Plus, with FIFA only confirming the new regulations with approximately 4 months’ notice and the national associations frantically scrambling to have something ready and many not announcing their new regulations until the last minute, it was impossible to predict the outcomes.
Subsequently my advice to those individuals looking to become agents at the time was to follow the current licensing and regulation procedure; sit (pass) the exam and get the relevant clearance(s) and insurance. Then come April 2015, and with the rest of the licensed agents re-register under the new system (as Intermediaries) whatever form it may take.
However, from the information I have garnered from some who sought guidance from The FA, they were told (either officially or unofficially) in 2014 and 2015 that the new regulations were due to be introduced and that they should carefully consider whether or not to sit the exam and/or apply to be licensed agents through the FA.
In fact, I would go as far to say it seems it was seemingly inferred by some representatives of the FA that prospective new agents/intermediaries shouldn’t bother taking the exam as in a few months their license will probably be 'worthless'. Many even questioned whether there was a football agents exam held in England in September 2014, so does this mean that anyone seeking to become a licensed agent between January 2014 and March 2015 was (in)directly advised to act in an unlicensed capacity (and thus unregulated), breaching both FIFA and FA regulations?
Why would a national football association NOT advise people to go through the licensing process as per the regulations at the time?
We can only guess the possible reasoning for any national association (or their representatives) to advise people not to sit the exam and go through the licensing process as per the regulations at the time. Some may doubt it was financial, even though the new Intermediary Registration system could potentially generate more funds for national associations and less costs for the likes of the FA, as this may well be considered insignificant given their overall finances. Whilst it could be argued it was laziness at not being prepared to process applications and arrange an exam, others may contest there may have been genuine goodwill to new applicants.?
The impact on those intermediaries who may have been advised not to go through the pre-2015 football licensing procedure may not however end there, and they may now have the same hurdles to overcome as new agents in 2022.
It is my understanding that the new FIFA Football Agent licensing system will give dispensation to those Football Agents licensed prior to April 2015 (should they have maintained Registered Football Intermediary status since), in that they will not be required to pass an exam, and will be enrolled again as ‘Licensed Agents’.
So, what happens if there is a delay in the licensing procedure, what happens if for whatever reason they fail the exam, where does this leave them (and their business)? Where does this leave their clients and ultimately who should shoulder some of the blame for them not being migrated to the agent licensing system (possibly the FA?), for which they wanted to be apply to before but may have been directed otherwise???
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2015 Intermediaries
The case for those intermediaries who became registered intermediaries after April 2015 is less clear, as their grievance could arguably be directed at FIFA (albeit a very weak argument), as well as any National Association such as The FA.
The ramifications for them are significant as they will have to undertake a whole new registration and licensing process. It cannot be taken lightly that some of these people have taken as much as the last 6+ years building up businesses and client bases that possibly come the summer of 2022 they will not be licensed or authorised to do so by the football authorities.
I have little doubt that the new FIFA regime will give reasonable opportunities for ‘Registered Intermediaries’ to become ‘Licensed Agents’ under the new regulations, with it being mentioned there will be at least 2 exam dates before the new regulations come into force in July 2022.
Unnecessary Regulatory ‘Laissez-faire‘
I know that I am not alone in my opinion that when it comes to the regulation of football agents The FA could do (and should have done) a lot better, and some may say that since the decision by FIFA to ‘abandon’ the old regulations in 2015, this was taken as an opportunity to relax the FAs own national standards yet further.
In contrast some may argue The FA were following FIFAs lead on this, but the fact remains, it was made clear (if not encouraged) that National Associations could go beyond FIFAs framework RWI. Some National Associations did and some didn’t, and ultimately argue that in the case of the FA in England retrograde steps were taken.
The Wider Impact
Whilst this article focuses mainly on the ‘interests’ of football agents (intermediaries) in this aspect, the arguable failure by The FA in upholding effective football agent (intermediary) regulations in England has a far wider impact. Subsequently the decision by The FA to seemingly weaken regulations and ‘licensing’ processes since April 2015 affect many more football stakeholders including players and clubs.
By not implementing effective regulations, sanctions and licensing (plus no education or CPD for agents/intermediaries), this has created problems for many (not just agents). I have heard on many occasions that legal disputes since 2015 in regards to football agent/intermediary activity have ‘rocketed’, not just between agents but also disputes involving clubs, player and third parties.
since 2015 legal disputes involving football agent/intermediary activity are reported to have ‘rocketed’,
Meanwhile, the only seemingly significant rise in The FA sanctioning Intermediary activity is primarily focussed on the authorisation for intermediaries to represent minors, where in many cases the breach was an honest misjudgement due to lack of awareness of the regulations by largely inexperienced intermediaries.
However, even in this case (as mentioned in my article from 2018 : Have the FA ‘Allowed an Unsavoury Safeguarding Genie Out of The Bottle?) it seems to have occurred based on a problem created, if not exacerbated by The FA in the change they implemented with regards to such things as licensing criteria, intermediary knowledge, intermediary education and regulation changes. This would have been addressed with The FAs Agent Regulations pre 2015 and thereafter if retained by The FA.
On the other hand, those national associations who took it upon themselves to charge registration fees to agents (both initial and annual) whether they relied on FIFAs basic framework for intermediaries or implemented their own additional regulations and licensing procedures, could find themselves on a very ‘sticky wicket' indeed, if not a very costly one.
Why are FIFA ‘Off the Hook’?
This is not a matter of letting FIFA ‘off the hook', in fact I think it safe to say that FIFA themselves have recognised their error of judgement in 2015 and are making efforts to address the situation with new regulations and licensing (irrespective of whether we think the proposals in their current form are good or bad, legal or illegal).
However, FIFA arguably didn’t totally ‘desert their post’ in 2015, they put in place the ‘Regulations of Working with Intermediaries’ (RWI), which in turn allowed the National Associations to go beyond this framework (i.e., laws, and additional regulations), and FIFA didn’t charge a fee to Registered Intermediaries.
FIFA arguably didn’t totally ‘desert their post’ in 2015
Some of the National Associations on the other hand took the opportunity to relax their own regulations and in some cases like that of The FA in England, also take a fee from ‘Registered Intermediaries, for a service in return that seems difficult to justify and an agreement (contract) they have arguably failed to execute.
The Cost
Since 2015 I (and others) have sought clarity and transparency from The FA on various matters when it comes to the regulation of football agents and intermediaries. This included how the registration fees of intermediaries had been utilised; and in general, the response to questions on agent/intermediary matters is often delayed, unclear, incoherent or lacking any form of meaningful response whatsoever.
The fact is that since 2015 The FA arguably entered into agreements (‘contracts’) whereby they had an agreement (contract) with thousands of ‘FA Registered Intermediaries’, for which it could be considered they had a duty of care in terms of amongst other things:
Now prior to 2015, no fee was taken by The FA from Authorised Agents (excluding that for the costs of CRB/DBS check, exam fees, fines etc). However, since then each intermediary was required to pay ￡250 to register and another ￡250 annually. Subsequently there have been thousands of intermediaries registered with The FA since April 2015, and it would be safe to judge millions of pounds have been received by the FA in terms of (Football Agent) Intermediary registration fees.
A dispute that could cost the English FA?millions?of pounds
The limited response to myself (including during my time as General Secretary of SOFIA) and others on the matter of how these fees have been appropriated by The FA has been very minimal, only unofficial and verbal. With the general message being these fees have been spent on the regulation of Intermediaries and the online system (IMS – Intermediary Management System), which if effective and evolving (arguably not the case), would possibly be an acceptable explanation for a ‘proportion of the revenues collected.
However, I think it safe to say that the opinion of many is that the IMS hasn’t evolved since 2015 (and seemingly has many highlighted faults), the Intermediary (agent) regulation team hasn’t grown (in fact contracted in ways, with the loss of experienced and very knowledgeable key members) and no benefit has been received by Intermediaries (even basic CPD and meaningful and regular communication).
So, the question has to be asked how these additional revenues gathered by The FA from intermediary registrations have been spent (as they were not collected prior to 2015), if not on the purpose stated; in improving the processes and procedures in the effective regulation of intermediaries (agents).
Possible Implications
So, what are the implications of this assessment and can The FA be held responsible for their actions (or lack thereof)? As such I strongly believe that:
This was actually all avoidable in my opinion had The FA not charged a fee for agent registration and renewal, the fees had been allocated to better benefit the development of agents (e.g., CPD) and/or more importantly The FA upheld the regulations and Intermediary registration system in a meaningful manner as per the agreement they entered into with Registered Intermediaries and was paid for.
where have the additional revenues gathered by The FA since 2015 from intermediary (agents) been spent?
So, the question has to be asked how these additional revenues gathered by The FA from intermediary registrations have been spent (as they were not collected prior to 2015), if not on the purpose stated; in improving the processes and procedures in the effective regulation of intermediaries (agents).
‘What …………… Football Agents Want More Money’?!?!?!
I can sense people screaming things like ‘what, agents want more money …… those leaches earn enough’, but it is safe to say many intermediaries registered since 2015 have not made a penny (in fact some have made significant losses).
Yet, this is not a matter of money, but the principal and transparency, not just that the agents have been let down by the likes of The FA, but also the wider football community (players, clubs, fans etc).
I would go as far to say that should a singular or group (class) action be brought on this matter the potential awards to agents/intermediaries on such a case for registration fees would probably be donated by many of the agents/intermediaries to a football/sports-related charity.
The Aim
The important thing is that the mistakes of the past are acknowledged, rectified and not allowed to happen again ……. especially as we enter a phase of new Football Regulation and with the advent of the likes of the UK Fan Led Football Governance Review and the new FIFA Agent Regulations..
Link to the original article : 'Another Potential Agent Storm Brewing for the Football Authorities?Not FIFA this time, but National Associations such as The FA' - at