Since 1996 Players’ agents were regulated, first by FIFA and from 2001 onwards the national football associations were responsible for issuing the license to natural persons that wished to be active in the search, selection and negotiation of employees in the professional industry. Basically, the activities of Players’agents can be characterized as the work of private employment agencies.
However, on the first of April of this year the football sector was confronted with the entry into force of the Regulations on Working with Intermediaries. This event had as a consequence that the regulations on Players’ Agents ceased to exist.
This development did not come as a surprise. Already in 2009 FIFA announced that it planned to overhaul the system of players’ agents regulation. The main reason for FIFA to make an end to the system of regulation was the assumption that many non-licensed agents were involved in players’ transfers. FIFA claimed that 70 to 75 percent of the transfers were carried out by non-licensed agents.
Unfortunately the research that established these numbers has never been made public, despite the fact that it was presented as the basis for a severe change in policy. This is against the trend for sports governing bodies to promote evidence based policies. In addition, such a conclusion that the transfers were carried out by non-licensed agents is simply impossible, because if a club would include the participation of a non-licensed agent in a transfer in the Transfer Matching System (TMS) then the lack of a “match” would deny the green light for a successful transfer of the player to a new association.
In my view the reason for the overhaul of the old system lies in the lack of power of FIFA to maintain a strict control over their own regulations. Opening the jurisdiction of FIFA, including access to dispute resolution chambers, to Players’ Agents created a wide array of cases that were brought directly or via Players’ Agents. This burdened the FIFA administration, and there was no clear benefit for FIFA. FIFA therefore chose the easy way out and placed all agents outside the sphere of FIFA’s responsibility. I cannot deny that a decision to place the players’ agents outside of the “football family” on the basis of these grounds, is understandable. Why continue to control an issue if it goes beyond your possible reach? However, the consequence has not been an “all or nothing” result.
FIFA moved to a deregulation of the profession of agents. What is now in front of us is a basic text that denies any liaison between the agents and FIFA. I shall not go into detail about the content of the new rules as these have been discussed in other parts of this volume. A relevant issue though, is that FIFA allows national associations to create rules that go beyond their own regulations. This sounds like a positive delegation of powers. However, in practice, this has already created a lot of difficulties. The fear for an “American quilt” of different regulations on intermediaries became realistic. This contribution is not the proper framework for charting all (potential) problems. The following is therefore not exhaustive and focuses only on EU Member States.
- The requirements for registration differ per country. The basics are similar, however the method in which to obtain a “proof of good conduct” is an administrative procedure that cannot be carried out at the last minute. Add to this aspect the fact that every country charges a sum for registration between 450 and 1000 Euro and the pressure of the transfer window, that only allows actual “business” to take place in pre-determined periods of time.
- There is a large inconsistency in the recommendation for the remuneration. France maximizes the fee that agents are allowed to charge on the basis of the gross annual salary of the worker on 10%, The Netherlands and Germany do not include any recommendation, England uses the 3% FIFA basis, Portugal 5%, etc.
- Every national member state has its own system of sanctioning agents. Sanctions are based on different regulatory frameworks, so no uniform system exists. FIFA must be informed about a sanction on an agent and FIFA may then decide to apply this sanction on a worldwide level.
- Transfers of Minors may not lead to a remuneration of the intermediary. However, the FIFA regulations do not set any limit on the duration of representation contracts. Some countries limit the duration of contracts to two years. The implications on minors are clear, an agent with bad intentions can go “forum shopping” and seek to conclude a contract with a minor in the most favourable jurisdiction.
- Some countries (England, Netherlands, Portugal, Italy, to name some) allow agents to register only once per year, instead of registering for every individual transaction. This places an agent under the jurisdiction of that specific Football Association. This seems prima facie efficient. However, what happens if an agent is domiciled in country A but carries out activities in country B with a player with the nationality C that is currently playing in country D? Which Football Association carries out control over the activities of the agent?
These discrepancies on the national level of the Member States of the EU have already lead in practice to a serious impact on the free movement of services. It is simply not logical that an intermediary with sufficient qualifications to carry out his profession in one EU Member States needs to register in another nation and therefore falls under the jurisdiction of the nation in which he registered a transfer. For every country in which he has registered he falls under the regulations of the national FA in question. In addition, the national FA’s have different sanctioning systems for intermediaries, so does this in practice mean that an intermediary can be sanctioned in Country X while he is domiciled in Country Y and that FIFA may decide to apply the sanction of Country X on a worldwide level, thus overruling the jurisdiction of the country of domicile of the agent?
These implications, that are just the tip of the iceberg, have never been discussed prior to the drafting and implementation of the new regulations. In my opinion the focus has been too much on capping the fees of agents on the basis of a, not very well argued, claim that agents only “take money out of the game”. The implications on the activities of agents have not been taken into consideration sufficiently, but, more important perhaps, the clubs, associations and players have been unaware of what will be the consequences for them. Especially with the apparent lack of a forum for deciding on international disputes there can and will be chaos and a lack of legal certainty.
So, is this all just negative? No, I don’t believe so. The stakeholders in professional football must live with FIFA’s decision. Due to the fact that FIFA allowed national differences and elaboration on its minimum requirements, many national FA’s were paralyzed as the have no experience in drafting own regulations beyond the sphere of what FIFA allows. Therefore, also due to the fear for creating too many differences with other countries that would be detrimental for the (commercial) success of the domestic football market in question, many FA’s have not been able to streamline a forum to draft solid regulations. But the countries that did, such as the Netherlands, may serve as benchmark and blueprint for other nations that want to learn of the best practices. Eventually this must lead to a common European approach, because a system where every nation has its own rules and bureaucracies is unworkable. The current situation is a severe blow for the free movement of (perhaps the most cross-border) services in the EU and it throws back European integration for more than half a century.
These impediments to EU free movement and integration may only be maintained in the case that there is a justification for it. Is this the case? The European Court of Justice decided in Piau that FIFA was allowed to regulate agents because players needed protection and the market needed transparency and quality control of agents. However, the new regulations are a nightmare for players (contracts of unlimited duration, players responsible for the actions of their agents, etc…) and there is no control on the quality of agents because no thresholds exist for the entry in the market as an intermediary.
There is a willingness from the side of the European Commission to look at potential alternatives or sources for the creation of uniformity. National associations in the EU have already expressed that a mutual recognition of intermediary registrations is desirable. UEFA appears to be willing to listen to initiatives.
If all the stakeholders in professional football are willing to collaborate then the expeceted chaos on the market will create sufficient awareness and as a consequence productivity to create an EU uniform set of rules that promote the provision of services in line with EU standards. This may be reached in one or two years and the format for achieving this might already be lying right in front of us.
Since 2012 there is a Sectoral Social Dialogue applicable to the EU professional football sector. This sector seems, in contrast to many other sectors, relatively productive in terms of creating workable and valuable output. Groundbreaking has been the implementation of an autonomous agreement on the minimum standards of employment contracts in the EU. Especially the “post 2004” Member States have benefitted from this as these standards are truly an added value to working conditions that were seen before 2012 in some football nations. The social partners in professional football are the employers’ organization representing the clubs and leagues. The players are represented by FIFPRo. A peculiarity in the sector is that UEFA, as a non-social partner organisation, is also part of the Social Dialogue sectoral committee. This seems problematic at first sight, and this remains problematic because it is not representative, but there are some advantages of which the most important one is that the route of implementing a Social Dialogue result through the regulations of football governing bodies is a novelty to the European Social Dialogue. There is much to say about this rarity but it cannot be denied that augmenting the platform for reaching binding agreements and implementing and disseminating the European Social Dialogue results, is a good cause.
Why not assess if the Social Partners can include the regulation of players’ agents on the level of the EU in the European Sectoral Social Dialogue Committee for professional football?
Roberto Branco Martins