An Uncertain Football Transfer Window May Lead to More Conflict, Discontent and Disputes (part 2/2)

This is a two part article, if you havent read Part 1 - can be viewed here.

PART 2/2 : Could the uncertainty of this summer's football transfer window with the new FIFA Football Agent Regulations (FFAR) sow the seeds of confusion, discontent, conflict and disputes?

‘Client-Pays’ Model (Theory)

Whilst the notion of the?‘client-pays’?model from FIFA is something I consider to be a relevant (if not commendable) aspect of FFAR in theory, the implementation and execution by FIFA I still find questionable (as with many other matters relating to FFAR). Even to the point where since the release of the FFAR officially in January 2023, I believe there to have seemingly been some ‘slight of hand’ by FIFA with supplementary documents to the FFAR to possibly ‘move the goalposts’?a little on the aspect of the interpretation of?‘client pays’?to avoid criticism and complaints (although I would argue there is still seemingly some contradiction between the FFAR documents from FIFA on this matter).

However, this again is an important consideration in regards to the summer 2023 transfer window and the implementation of the FFAR ‘fully’ in October 2023, in a similar way to some of those aspects mentioned already. As such the party referred to as having the responsibility to pay the agent in any agreement finalised after 16th?December 2022, may arguably have to change after the 1st?October 2023 on the full implementation of the FFAR, so as to comply with the FFAR.

As such, some may get a ‘nasty surprise’?when the obligation to pay the agent suddenly falls to them, or some agents may even find themselves unable to get paid on agreements agreed some 9 months previously, based on the changes.

The result of this is of course disputes. Disputes between agents, disputes between players and agents, disputes between clubs and agents, disputes between managers and agents even disputes between players/managers and clubs.

Agent or Agency Representation

Another thing to consider is the adjustment that agents and agencies look to make in terms of their fiscal considerations (if not cuts), should the capping of agent commissions and other restrictions come into force under FFAR (once all the legal challenges are concluded).

This gets a bit more complicated when we consider the adjustment under FFAR back to just ‘natural persons’?as FIFA licensed agents, whereas under RWWI, ‘legal entities’?(i.e. companies, agencies) were able to become?‘Registered Intermediaries’?(as mentioned previously).

In light of FFAR this has seemingly resulted in agencies understandably looking to move clients from agency-representation-agreements (as ‘legal persons’) to a hybrid nominated agent/agency arrangement (if not in place already); if not discarding agents all together or making them consultants to cut costs, but possibly keeping the clients through another (senior) agent.

However, this metaphorical?‘blade’, ‘cuts both ways’, as intermediaries (agents) may see an opportunity to secure the client with whom they have built up a relationship as their own client, rather than a client with their parent-agency/employer and arguably use this position as leverage to either secure better terms with the parent-agency, move to another agency (thus taking the client with them) or even consider ‘going it alone’?as an independent agent.

And whilst the primary assumption here is an increase in the disputes solely between agents (and/or agencies) –?

…….. the result of this is of course a wider range of agent-activity related disputes. Not just disputes between agents, but also disputes between players and agents, disputes between clubs and agents, disputes between managers and agents even disputes between players/managers and clubs.

‘Legacy’?Contracts/Agreements and Their Long-Term Impact

I haven’t yet touched upon representation agreements/contracts that agents/agencies concluded with a client prior to the 16th?December 2022 (when FFAR were approved), as to all intents and purposes these seemingly fall largely outside of the remit of FFAR and will largely be unaffected in October 2023 (and the summer transfer window), unless renewed or amended.

If an agent-client representation agreement was concluded in say November 2022, arguably most of the new provisions of FFAR would not be applicable until typically November 2024. Thus, the agreement resides in a ‘RWWI-vortex’ somewhat, unregulated and not impacted by such elements as the ‘cap’ on agent commissions and permitted dual-representation. And when we consider the fact that, in some territories representation agreements between agents/intermediaries and their clients have been permitted to have longer terms than that of 2 years, this term of seeming FFAR ‘untouchability’?for some is extended even further than November 2024 (as would be the case with a 2 year limit on the term of a representation agreement).

Some may argue it would take an agent/agency with psychic ability, a crystal ball or dare I say ‘insider information’ to establish representation agreements to bypass the impact of FFAR prior to December 2022, as FIFA had the hindsight to establish that the FFAR would have some applicability as soon as the regulations were approved. However, this is in my opinion simply not the case, as the mention of a?‘cap’?on agent fees and the more contentious elements of FFAR were spoken of and/or proposed by FIFA since 2018/19. As such if people think some savvy agents haven’t been wise enough to be renewing representation agreements with clients in the intervening period, then you vastly underestimate them.

Whilst there is some uncertainty surrounding what happens should the representation agreement/contract expire prior to client’s other contracts expiring (e.g. playing, commercial) or being renewed, amended etc – it is worthwhile considering that the implications of such, may well have an impact way beyond October 2023.

And just when we thought things couldn’t get any more complicated, let’s take the possibility of a playing/employment contract being signed by a player in the Summer 2023 transfer window, but?their associated agent representation agreement being signed with their agent in November 2022. Therefore, it is seemingly?possible?for the term of that agents participation in that transaction falling outside of some aspects of FFAR,?until the Summer of 2031?in the case a 8 year playing contract (not unheard of – e.g. Mykhailo Mudryk signing a reported 8? year contract with Chelsea in January 2022).?

** A subsequent thought by myself whilst writing this article is that, some agents/agencies?may?even risk allowing ‘legacy’ agreements to run for as long as they can, so that they apply in the summer transfer window not just in 2023, but possibly even 2024.?With the aim of allowing their representation terms to ‘escape’ some of the restrictions imposed by FFAR (e.g. no ‘cap’ on agent commissions).

However, with this huge reward also comes huge risk. Granted the larger agents/agencies are far more resilient to the attempts of others to ‘poach’ their clients, but in taking this risk, the more vulnerable agents may risk losing clients as the remainder of a representation agreement slowly dissipates.

Granted these aspects are all very nuanced and somewhat complicated, if not theoretical. But in combination with other factors (some of those covered above) –?……. the result of this is of?course disputes. Disputes between agents, disputes between players and agents, disputes between clubs and agents, disputes between managers and agents even?disputes between players/managers and clubs.

Do Measures Undertaken by FIFA Signal Imminent Chaos and Disputes?

So, with all of this in mind, are?FIFA and the football authorities expecting chaos, confusion and disputes as a?result of FFAR after the 1st?October 2023?

Whether you give FIFA credit for seemingly demonstrating some foresight with new dispute resolution mechanisms; such as the ‘agents chamber’?as part of the new FIFA Football Tribunal and the new

mediation panel (for which I have some considerable reservations and?concerns, which I will cover in a future article), I think the?resounding answer is?YES – FIFA do?seemingly?expect disputes and?problems as a result of the new FFAR.

The question is whether FIFA see the problems rather naively as ‘teething’?problems or longer-term issues, remains to be seen – but no doubt discontent, conflict and disputes will happen because of these changes.?PLUS, it is worth noting that many of?the measures FIFA have put in place, only cover transactions with an?‘international?dimension’?……… what happens to the huge number of other disputes?

The original article?'Could the Uncertainty of this Summer's Football Transfer Window with the New FIFA Football Agent Regulations (FFAR) Sow the Seeds of Confusion, Discontent, Conflict and Disputes?'?can be read at?www.footballmediation.com

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