Have the Football Authorities Allowed Agents a 'Slice' of Transfer Fees?

Last week the English FA (Football Association) sent out it’s (in)frequent email update to all registered intermediaries (agents), with the new season fast approaching.

And as a result of this, quite a lot of people including intermediaries/agents, lawyers, media types and unlicensed operators (agents) have been ‘jumping up and down’ claiming it to be some sort of seminal moment for football agent regulations.

This is all related to a note in the email referencing (agent commissions) rule E5:

**E.5 (note):

An Intermediary who has a Representation Contract with a Player, may now be remunerated for services to the buying Club in relation to the transfer compensation generated by this Transaction.?

However, as far as I can tell it is seemingly neither a seminal moment nor notably something to be lauded; especially for those who support clarity, good governance, and effective regulation in football. In fact, it appears to be quite the opposite.

To get my own disclaimer in early, I am neither a lawyer nor a legal professional, and as such am still awaiting legal opinion and the opinion of others in sports governance.?

A Case of a Simple Typo?

Now given my experiences with the Football Authorities and various ‘small' oversights and errors in the past (eg. Dates, typos and timely IT glitches) it could well have been that this was similar and a simple typo that could have been quite an embarrassing error, that would have not been easily forgotten. As such if we change a ‘W’ for a ‘T’ in the text above, and thus a ‘now’ for a ‘not’, to read:

*If a typo occured, would read* : An Intermediary who has a Representation Contract with a Player, may NOT be remunerated for services to the buying Club in relation to the transfer compensation generated by this?Transaction.

…….. it certainly gives a very different slant on what many have perceived to be a regulation change. In fact, on reflection, this may well have been a more acceptable reason for the notice, yet from checking with the Football Authorities I am told it is not an error (well not one of a typographical nature).

Regulation Change or Not?

Now for all those who seized on this announcement of a ‘regulation change’ as a cause for rejoicing in the ability to change the way in which agent commissions are structured and calculated…… just ‘hold your horses for one second’.

Having cross-referenced regulation E5 with the past version of the ‘FA Handbook: WORKING WITH INTERMEDIARIES REGULATIONS’ and checking with the authorities … there is NO CHANGE to regulation E5 between the previous version and the version released by 'The FA' with this announcement.

So, it is worth taking note of the comment that precedes the note in the same email from 'The FA':

There have been amendments to the Guidance Notes on provisions C.3. and E.5. of the Regulations.?

………. So, is this a ‘regulation change’ or merely a change to the ‘Guidance Notes’ that come with the regulations?

And as such, should it be the latter, does this not result in less clarity on the regulations and arguably weaken how enforceable the regulations are?

Or does it merely leave a ‘loophole’ for open interpretation by 'The FA' and Football Authorities as to which case to pursue and which to ignore, and for intermediaries/agents to try and exploit any such ‘loopholes’’?

Not Worth the Paper (email) it is Written On?

So, if this is (as I suspect) a certain amount of loosening of the regulations by 'The FA' in terms of agent commissions, and ultimately providing a ‘loophole’ which some may presume they can take advantage of, how safe would they be in exercising the right to ‘exploit’ this change, and ultimately benefit from a new business opportunity.

The fact is we do not know the legitimacy of this ‘allowance’, or its impact ……… until it is tested or challenged! Either by an Intermediary/Agent taking advantage of this newfound ‘opportunity’ OR subsequently 'The FA' choosing to charge an Intermediary/Agent with breaching the regulations

It may just be me, but I would ‘air on the side of caution’ that the regulation (not regulations) has not changed, and it is ‘Russian Roulette’ as to whether 'The FA' were to seek to charge an intermediary/agent with a breach of the regulations or not. After all, the E5 regulation remains unchanged, and I believe could be argued (not least by a suitably adept and skilled lawyer) that it conflicts with the email guidance:

RULE E.5 (extract):

This does not prevent an Intermediary acting solely for a Club in relation to a Transaction to transfer a Player’s registration being remunerated by reference to the total amount of transfer compensation generated by solely that Transaction.

*NOTE : bold and underlined for this article

Legal opinion may vary as to whether 'The FA' in this email has given Intermediaries/Agents permission or an ‘allowance’ (if not a loophole) to exploit this ‘change’, as the ‘allowance’ mentioned (**E.5. (note)) is solely documented in the email and not documented in either the latest regulations or the guidance notes for the regulations.?

Or whether the authority of the core regulations takes precedence (nullifying the ‘allowance’ at the discretion of 'The FA' on a case-by-case basis), not least as even the guidance notes clearly state:

These notes are intended to provide guidance on certain provisions of The FA Regulations on Working with Intermediaries (“the Regulations”) as at July 2022. These notes do not alter or replace the Regulations, which should be referred to in all cases for the complete and definitive position.

In the event that there is any inconsistency between the Regulations and these guidance notes then the Regulations shall prevail.

So, in essence, aren’t the guidance notes there to ‘supposedly’ provide some clarity? ?………. Not in this case, so it seems.

Regulatory ‘Loopholes’ and Rules Open to Interpretation

It is no secret that I am not a fan of ‘The FA Regulations on Working with Intermediaries’, or the way in which the industry is regulated both nationally and internationally. Some would go as far as to say that the current regulations are a joke, as are the mechanisms underpinning regulation and enforcement, and it would be hard for me to disagree. ?

For me, this frustration is further compounded by the fact that this wasn’t always the case for England and the regulations implemented by 'The FA' prior to 2015, which were, whilst not faultless, arguably a lot better than they are now.

The main problem with the football ’agent’ regulations that currently exist is that there is far too much space for a loose interpretation of the regulations, which leaves effective regulation and enforcement difficult, if not somewhat unfeasible. This has thus been exacerbated by the seemingly steady erosion of the regulations since 2015, and the lack of clarity and transition from what was a ‘cloudy pool’ to what is now a ‘muddy swamp’.

Just one example is the thresholds specified by which the authorities determine how much an agent/intermediary can exercise influence over a player or club. These are largely subjective and not objective (thus not really accurate) and even where thresholds are declared (eg. 5% ownership) this threshold will be variable dependent on the circumstances of each case and the parties involved.

Added to this is the use of non-exhaustive lists of what is permitted (and what is not) even to the extent of what is agent/agency activity and what is not. These inconclusive lists further hamper effective regulation and result in authorities being inconsistent, if not ineffective and unfair in how they regulate and enforce regulations.

However, the issuance of such statements (emails) and revisions by the likes of 'The FA' (as per last week) just go to cause further confusion not just for intermediaries/agents but also for clubs, club officials, and players. The risk of an FA charge for falling foul of such confusion is not so much a problem amongst the clubs, bigger agents, and agencies who have the ‘silver-tongued’ legal expertise at hand and financial firepower to fight FA charges.

Yet for smaller operators in the agency world, smaller clubs, and many players, such opaqueness leaves them uncertain, if not at risk of falling foul of the regulations and thus being sanctioned.

It Doesn’t Matter Any Longer – FIFA is Changing?Agent Regulations Anyway ……. Really?

When commenting on people making reference to this regulatory ‘change’ (note) by 'The FA', I have been greeted by a reply along the lines of:

“it doesn’t matter, as FIFA is changing the Agent regulations soon anyway”

Yet this demonstrates a lack of perspective and knowledge, if not naivety in regards to this FA announcement.?Not least as this is announced in the present and it could legitimately ‘open the door’ to actions (eg. contracts and agreements) entered into now that may be untouchable under new regulations and could not be addressed retrospectively.

Besides the fact that I have been involved in discussions with FIFA and various other parties in regards to the new regulations; whereby I may be aware of some matters and undertaking that others are not. It is also worth noting past timelines and the history of football agent/intermediary regulations.

As such:

• FIFA agent/intermediary regulations are primarily focused on affairs of an international dimension, rarely does FIFA encroach on domestic matters. Although, this change would seemingly contradict the framework of the final draft of FIFAs new agent regulations for domestic agent regulations to be implemented by National (Member) Associations.
• First official discussions between agents and FIFA for the new Agent regulations took place in 2018 (4 years ago at the time of writing this article), and we still have no approved regulations.
• The final draft of new regulations was delayed by what seemed to be almost 6 months – with little or no reasoning.
• The implementation of new regulations was originally targeted for the Summer of 2022, we are now not even expecting approval until October 2022 at the earliest, meaning a possible further 1 year wait for implementation.
• The implementation of the ‘ill conceived’ 2015 FIFA RWWI (‘Regulations on Working With Intermediaries’) took reportedly 7 years from inception to implementation.
• MOST NOTABLY even after approval, it is almost inevitable that FIFA are on a collision course for several substantial legal battles with various agent groups from around the world. And as such, the legal challenges of the agents are believed to be confident ones, and this will further delay the implementation of any new regulations (potentially for years).?

Conclusion

So, whilst some are excited by this announcement from 'The FA', I would definitely air on the side of caution, unless you have a ‘hotline’ to a ‘silver-tongued’ sports lawyer who can disarm football regulatory arguments with a swish of their pen.

?As to what 'The FA' are trying to achieve with this apparent change in regulatory guidance, or what has prompted such a change, I do have a few thoughts, as well as the potential negative impact such an ‘allowance’ (and announcement) could have on effective football agent regulation ……… which I intend to cover in a future article.

The Original Article?'Have the Football Authorities Allowed Agents a ‘Slice’ of Transfer Fees ?',?can be read at :

https://footballagentblog.chironsportsandmedia.com/2022/07/have-football-authorities-allowed-agents-a-slice-of-transfer-fees/