We've been waiting for this for a long time, a lot has been written: today the first part of FIFA's new regulations on working with intermediaries comes into force. According to its own statement, FIFA wants to put a stop to what it says is the prevailing “law of the jungle” and is therefore establishing drastic rules for player agents and agents, regardless of the widespread criticism from player agent circles. The new “FIFA Football Agent Regulations” (hereinafter “FIFA Agency Regulations” or “FFRA”) provide for the following innovations:
Valid for international transfers
The new provisions apply to all mediation activities that have an international dimension. FIFA's definition is broad. Any activity by an intermediary that is related to an international transfer or transaction (Art. 2 Para. 1 lit. b FFAR) constitutes an intermediation (which is subject to FIFA regulations).
Also applies to trainers
Since FIFA has already extended the applicability of the FIFA regulations regarding the status and transfer of players to coaches, the new placement regulations also apply to placement services in connection with coaches.
National associations must follow suit
According to the scope of application, the new placement regulations are “only” applicable to international placements. Nevertheless, Article 3 FFAR stipulates that the national associations must include the majority of the material provisions in their national regulations for working with intermediaries. This adoption (in particular the provisions limiting agent commissions) must be implemented by September 30, 2023. The establishment of stricter provisions than those in the FIFA placement regulations is permitted.
Reintroductions of the licensing system and the specialist examination
Anyone who wants to work as an intermediary in the future must register with FIFA and, in particular, successfully pass a specialist examination (Art. 4 FFAR). This means that FIFA is returning to the FIFA licensing process, which it abolished in 2005. The exam is designed as a multiple-choice test and is created by FIFA. This is intended to prevent the examination - which was sometimes the case under the old examination regime, in which the member associations were responsible for the examinations - from degenerating into an alibi exercise. Knowledge of football regulations is tested.
Written intermediary contract with a fixed term
Intermediaries must conclude a written contract with their clients in which the contractual services are defined. Agreements between an agent and a player/coach may not exceed two years. An extension by means of a new contract is possible; However, clauses regarding automatic extension are not permitted (Art. 12 FFAR). An agency contract can only be terminated early “for good cause” (“just cause”). Termination without good cause will result in a claim for damages from the other contracting party. From a Swiss perspective, this provision is likely to contradict the right of withdrawal at any time according to Article 404 OR, which according to the Federal Court is a mandatory law. It can be assumed that the Court of Arbitration for Sport (CAS) in Lausanne will have to deal with this contradiction sooner or later.
Multiple representations
The FIFA agency regulations prohibit the representation of several parties in a transfer, but with one exception, which - as of today - is probably the norm: in the future, agents will also be allowed to represent the receiving club and the player at the same time. However, the prerequisite is that both represented parties give their written consent before the transaction. However, dual representation of the releasing club and player as well as representation of both clubs is prohibited (Art. 12 Para. 8/9 FFAR). Accordingly, in the future it will no longer be permissible for an agent of a player to demand compensation from the transferring club (particularly for assistance in the early termination of a player's contract).
Limitation of the brokerage commission
To a certain extent, this is the heart of the new FIFA placement regulations. No other measure was discussed more controversially in advance. It is particularly questionable whether the limitation of the commission can withstand competition law scrutiny (see in particular the letter's publication). When representing a player or the receiving club, the maximum commission is calculated based on the player's annual gross remuneration (ie base salary, sign-on fee, bonus). For gross compensation of USD 200,000 or less, the commission is limited to 5% of the player's gross compensation. If the gross compensation exceeds USD 200,000, the maximum commission is 3% of the gross compensation. When representing the transferring club, the agent's commission is limited to 10% of the transfer payment. All payments to intermediaries must be made via the newly established “FIFA Clearing House”, a FIFA clearing house through which payments are processed centrally.
Due diligence and information obligations
The FIFA Mediation Regulations provide for a number of additional duties of care and information for intermediaries, which are intended to strengthen the rights of those represented and facilitate control by FIFA.
New dispute resolution mechanism
Disputes between intermediaries on the one hand and players and/or clubs on the other hand will in future be adjudicated by the “FIFA Football Court” in accordance with Art. 20 FFAR (although, contrary to FIFA’s own name, this is neither a state court nor an arbitration tribunal ). The right of the parties to appeal to a competent state court remains reserved (particularly in view of the (in)applicability of Article 404 CO, this is likely to be of some relevance to Swiss cases). In addition, FIFA (especially the Disciplinary and Ethics Committees) has the right to impose sanctions on erring intermediaries (Article 21 FFAR).
Transitional provisions
Intermediary agreements with a duration longer than October 1, 2023 do not require modification, but are not allowed to be extended without complying with the new provisions. A review of the new FIFA placement regulations leaves no doubt: FIFA keeps intermediaries on a short leash. In doing so, it accepts that the new provisions will significantly interfere with competition. Anyone who wants to work as a football agent after October 1, 2023 - when most of the regulations come into force - would do well to start implementing the regulations now. The new regulations will strengthen the negotiating position of clubs and players. In particular, the limitation on the brokerage commission should simplify negotiations with intermediaries (especially about the brokerage commission).
However, it is also clear
The final word has not yet been spoken regarding the new regulations, as several intermediaries have already announced that they will have the regulations reviewed by the courts. In addition, various provisions in the new regulations leave room for interpretation. Markus Prazeller, January 9, 2023 Addendum from January 16, 2023: According to FIFA statements, SECO's licensing requirement for employment agents is not an exception to the FIFA placement regulations. This means: Swiss agents also have to license themselves and the FIFA Take the exam.
