Has The Suspension of FIFA’s Agents Chamber Left Football Agents & Those in Agent Related Disputes 'Sidelined'?
Jonathan Booker
Resolving Costly Sports Disputes Before They Escalate | In the business of 'score-draws', and avoiding expensive 'losses'.
The relatively ‘new’ FIFA Football Agent Regulations (FFAR) that were first released in 2023 along with the framework that surrounds them, have been subject to a range of criticism, scrutiny, ridicule, and many legal challenges (some that have succeeded, some that have failed and some that remain unresolved), from around the world.
Yet what many fail to realise is that the FFAR does not only harbour elements that many object to, but that the FFAR also includes some elements that if not improvements, are very welcome to many, including some in the agent community leading the aforementioned challenges to FIFA and the FFAR.
Hence, in light of some of the legal challenges to the FFAR, FIFA seemingly took the decision to suspend several elements of the ‘new’ agent regulations (FFAR), not just those that were questionable, but also several that were welcomed by many, if not vital in facilitating the practicalities of licensed football agent-related activity.
One such element that is currently suspended by FIFA (at the time of writing) is ‘The Agents Chamber’ (under Article 20 of the FFAR), which is viewed by many as a very positive and welcome element of the FFAR. However, in light of this seemingly indefinite suspension (as announced in FIFA Circular 1873 on the 30th December 2023), this situation leaves many, not least agents, somewhat ‘high and dry’ when it comes to agent-related disputes.
Purpose of the Agents Chamber
As an integral part of the new FIFA Football Tribunal, The Agents Chamber was intended to deal with any dispute relating to Representation Agreements between a licensed football agent and a client (on or after the 1st October 2023), so long as the dispute was adjudged by FIFA, to have an ‘international dimension’.
And to use FIFAs own words to encapsulate how important The Agents Chamber was viewed to be by many, it was described as:
“an important step in ensuring that any disputes concerning the Football Agent Services are resolved fairly and equally for all participants in the transfer system, FIFA dispute resolution systems are being reintroduced under the FFAR for disputes arising out of, or in connection with, a Representation Agreement with an international dimension.”
Yet, in the absence of The Agents Chamber, the question has to be asked as to where this leaves agents, their clients (whether players, managers/coaches, or even clubs) and any other related football party as and when a dispute arises – and ultimately does the suspension of article 20 of the FFAR (and subsequently The Agents Chamber) abandon these participants without a clear means to resolve their dispute.
A Problem Exacerbated or with Alternatives?
Given the nature of football regulations, as well as the complex agreements that often exist in football, which include those between agents and their clients, rarely is something as straightforward as it first seems. Hence, The Agents Chamber seemed to offer at least some certainty for some agent-related disputes, as to the most basic level at which a dispute would be heard.
Yet without The Agents Chamber, it irrefutably throws such disputes firmly into a realm of uncertainty, unless:
As such, it is conceivable that a dispute MAY be able to be resolved through a national football dispute mechanism (NDRC), or even an ordinary court of law if such provisions are made in the original contract/agreement relating to the dispute and the nature of the dispute allows for this.
However, there is the potential that football regulations themselves may exacerbate the problem in this respect, whereby restrictions exist governing where such a dispute could be heard or the type of dispute resolution that could be utilised. That is unless specifically defined in the contract/agreement and allowed for in the football regulations, both International (FIFA) and National.
Alternative Options with Agent Disputes
As already referenced, the contract/agreement that may in turn become subject (or related) to a dispute between agent and client at some point in the future (despite the best intentions of all parties to the agreement/contract involved), may incorporate an alternative means of dispute resolution. As such, many conscientious lawyers in drafting the contract/agreement, should have proactively incorporated an alternative dispute resolution mechanism into said contract/agreement. It is not unheard of for any such dispute to be heard at CAS (Court of Arbitration for Sport), due to a clause in the contract/agreement, clearly specifying CAS as the final means of dispute resolution.
However, as covered in previous articles, the costs and expediency of CAS are not always feasible in such disputes, as is the case with various other means of arbitration and litigation. The cost of such proceedings and the associated legal costs can spiral, and to get to the hearing alone can take a considerable amount of time, let alone reaching the stage of receiving a decision, ruling, and resolution.
This is why there is a growing interest in utilising mediation to resolve such disputes; given the expediency, cost-effective and confidential nature of mediation as a dispute resolution mechanism.
Whilst both CAS and FIFA also offer ‘mediation’ as an alternative means of dispute resolution, there are some question marks over the applicable nature of mediation with these organisations for different reasons. As covered previously, substantial questions remain over whether FIFAs form of ‘mediation’ is, in fact, mediation, or some mutant quasi-arbitration approach (see ‘FIFAs Mediation – ‘True’ Mediation or Arbitration ’on the Cheap’? ’ – also on linkedIn )
Proactive Alternative Measures
With disputes in football, it is more often than not the case that ‘prevention is far better than cure’, and? the recommendation would always be for agents and their clients to incorporate not just one dispute resolution clause or option in their contracts/agreements (such as a default FIFA clause of NDRC clause), but possibly a tiered approach with alternative options for dispute resolution
Whilst The Agents Chamber may be reactivated in the near future, there is the possibility that this may not be the case, or that it, or others, may be suspended again in the future due to such things as the legal challenge to FIFA and the FFAR.
As such, a considered and proactive approach would be to ensure every contract / agreement incorporates a CAS clause as a ‘last resort’, while also incorporating an independent mediation clause as a first option, even before the likes of an ‘Agents Chamber’ DRC or NDRC.
This, whereby such a mediation clause is an option for the parties to a dispute to reach a resolution, but is not mandatory.
The original article 'Has The Suspension of FIFA’s Agents Chamber Left Football Agents & Those in Agent Related Disputes 'Sidelined'?' can be read at www.footballmediation.com
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2 个月Great position, I have been advocating for such an approach since the December 2023 FFAR suspension. Unfortunately, with some recent representation agreements, not only that mediation is not even considered, but FIFA Agents Chamber is (still!) designated as the only dispute resolution forum without any regard to the suspended provisions and/or international dimension, if any at all. Hopefully we will see this dispute resolution vacuum as an opportunity to explore mediation as well, no better chance for that than now.