Consequently, the Findings recommend the adoption of harmonized and uniform regulations relating to agents at a global level or, as a minimum, at an EU level. They also suggest that to prevent the fragmentation of the European single market, national associations should operate a system of mutual recognition, to cover the eventuality of some applying more stringent standards than others.
5. Bring agents into the footballing family via the carrot and stick of rights and obligations
The Findings highlight that FIFA has historically handed the global regulation of agents to national associations due to the onerous level of administration involved. This has raised serious and to date unanswered questions about the standards and consistency of compliance, enforcement and sanctions within those associations. There are, to put it mildly, varying cultures of both compliance and resource, leading to incongruities such as a wild variance in the examination pass rates for agents.
There are also potential issues of bias. For example, under the RWWI there are no longer mandatory referrals to FIFA for international disputes, meaning that agents from outside the association running a dispute resolution process may feel disadvantaged. It is an idiosyncrasy that a dispute at national association level can be referred to the Court of Arbitration for Sport (under Article 57 of FIFA Statues (2016)), yet FIFA refuses jurisdiction for intermediary disputes (under FIFA Regulations on the Status and Transfer of Players (RSTP) (Art 22)).
Respondents to the stakeholder survey believe change to the dispute resolution process is required, with only 10% agreeing that "the resolution of disputes involving intermediaries is working well”. The Findings propose that agents are brought into the fold by being given both rights and obligations, enforced by both the national and international footballing authorities. They also recommend that enforcement and dispute resolution should form the core of new regulations and that stringent but proportionate sanctions be imposed on all stakeholders who breach such regulations, not just agents.
Despite the depth and breadth of the Findings, at their core are two key themes; (1) bringing agents into the footballing family by giving them a voice and (2) creating uniformity in agent regulation across Europe. These are undeniably sensible conclusions. However, are they utopian? How easy will it be to implement regulations which attain these goals?
One hurdle to overcome is the sheer number of footballing stakeholders involved in implementing any new regulations. The Findings consider football stakeholders as a homogenous group but in reality, they are diverse, each with their own list of priorities. They include; FIFA, UFEA, national footballing associations, the European Union, national legislative bodies, clubs (both those in Europe and globally), players, agents, coaches and other backroom staff and fan representatives. The list goes on.
Crafting and implementing regulations for agents which succeed in delivering the recommendations in the Findings, whilst also satisfying each of the stakeholders, is going to be a monumental task.
For any new regulations to be successful, the consultation and implementation would need to led by either FIFA or the EU (as the most powerful stakeholders), with support from all others. The process would need to be clearly set out giving each stakeholder, including the agents, an opportunity to comment on proposed regulation. However, ultimately the process must be under either FIFA's or the EU's hegemony.
To ensure agents are fully recognised as stakeholders and consulted on proposed regulations, agents should consider organising themselves into a unified body; the Findings' suggestion that more than one representative body could be recognised hold dangers. Differing agent organisations could have conflicting opinions on any given subject and consequently, agents would be unable to meaningfully contribute to debates within the footballing community. Instead, it may be prudent to have one recognised agent representative organisation in the form of EFAA, and it should be internally organised to ensure that it represents the majority consensus amongst all agents.
The Findings identify FIFA as being best placed to offer international harmonised regulations for agents which address many of the concerns set out in the Findings; we agree this is a sensible conclusion. However, a difficulty arises in that FIFA seem unwilling to take on this responsibility. As the Findings note, FIFA has already handed responsibility of regulating agents to the national associations due to the administrative burden it placed upon it. What has changed in the interim which means FIFA would be in a position to manage a far more stringent global regime with increased administrative requirements, such as licensing, a dispute resolution mechanism and an enforcement mechanism? Would FIFA be provided with the necessary resources by other stakeholders? Until FIFA signal their enthusiasm to undertake the significant regulatory role the Findings expects of them, we feel the Findings' proposals should be treated with a degree of caution.
The issues surrounding agent regulation are in some ways analogous to the Brexit process; a variety of stakeholders knowing what they don't want but unable or simply unwilling to agree on what they do want, the best way forward or the ultimate form which the proposed regulation should take. The Findings present a valiant effort to find a successful path to effective regulation. However, just as with Brexit, until the stakeholders indicate a willingness to both partake in the process of forming new regulation and reach a consensus on the form it should take, it is questionable when the regulation proposed by the Findings will materialize.
Meanwhile, look out for our follow up pieces delving into these recommendations in more detail as the conference approaches and in its immediate aftermath.