1st August 2023
On 6 January 2023, FIFA published new FIFA Football Agent Regulations (FFAR), designed to guarantee minimum professional and ethical standards for football agents. But what do FIFA’s new regulations for football agents change and will those changes be implemented as FIFA intends?
The core substance of the regulations, which apply to international transfers, are due to come into force on 1 October 2023. The FFAR require national football regulators (including the FA) to adopt regulations consistent with or stricter than the FFAR before that same date.
Given the numerous legal challenges brought against the FFAR and its domestic equivalents, there is some uncertainty as to what rules will apply come that deadline. India Swall and Sarah Ward explain the current position.
The new FIFA regulations introduce several key changes:
The rules regarding triple representation and the commission cap are due to come into force on 1 October 2023.
FIFA’s decision to implement a commission cap is a direct response to the widespread criticism surrounding the high levels of remuneration directed at agents in recent years. The new rules aim to modernise the existing football regulatory framework and protect the transfer system by bringing more transparency and fairness to the agent industry.
Some have welcomed the regulations, viewing them as a necessary step towards bringing more fairness and control to the industry. These stakeholders believe that the commission cap and other provisions will help prevent inflated fees and ensure that a larger share of funds is directed towards clubs and players. However, the reaction among agents has been largely resistant, with agents making the following criticisms (among others):
The implementation of FFAR has encountered several legal challenges already, including:
The main issue in the legal challenges to the implementation of FFAR is whether it is subject to EU and/or national competition law. The agents’ principal challenge is that features of FFAR are in contravention of the rules prohibiting anti-competitive agreements and abuse of a dominant position. In granting the injunction against FIFA and the German Football Association mentioned above, the Dortmund Regional Court considered there were strong arguments that the FFAR amounted to a “hardcore price or purchasing cartel” and an abuse of dominance by the two authorities.
FIFA’s argument is that competition law does not apply to FFAR because of the well-established principle that sporting rules are exempt if they are necessary and proportionate to achieve legitimate objectives, such as protecting players, increasing transparency and raising ethical standards. CAS was persuaded by this argument when it recently ruled in FIFA’s favour. However, the weakness in this argument in those proceedings which have not yet concluded may be that rules relating to agents are not ‘sporting rules’ but instead regulate economic activity which is ancillary to the sport. Even if the rules are deemed to be sporting rules, the question will be whether the restrictions imposed are necessary and proportionate to achieve the aims they are pursuing.
Of course, this is just another example of the competition law rules being used to challenge contentious developments within the world of football. As well as its preliminary ruling on FFAR, preliminary rulings from the ECJ are awaited on the application of competition law to:
The FFAR aim to introduce significant reform to the football agent industry in the UK and globally. While the introduction of administrative fees and licensing exams have been relatively well-received, the commission cap has sparked considerable debate and resistance from agents.
As it stands, the football industry should prepare for the rules to be implemented in full from 1 October 2023, although a lot will depend on the various ongoing legal challenges. As has been seen by the variation in approaches of CAS and certain national courts, it is not yet clear what the international and domestic position will be on the intended ‘go-live’ date.