New FIFA regulations on agents
Adopted by the FIFA Council in December 2022, the new FIFA agent regulations came fully into force on 1 October 2023. These regulations are the result of a consultation process involving all stakeholders in world football.
They replace the 2015 rules which liberalised the agency sector, notably by abolishing the requirement to hold a licence.
The aim of the new regulations is to modernise the regulatory framework for football in order to ensure the smooth operation of the transfer system. They introduce standards governing the activity of sports agents and the services they provide to their clients.
FIFA member associations had until 30 September to adapt their national regulations to FIFA’s new requirements. France did not amend its legislation, considering that it complied with the new provisions.
I. The key measures of the new regulations
The entry into force of this new text is an opportunity for FIFA to redefine the role and activity of agents. An agent is “a natural person licenced by FIFA to perform football agent services on behalf of a client with the purpose of concluding a transaction“. Agent services are services provided in the context of football for or on behalf of a client.
It is worth taking a closer look at the main new features of these regulations, in particular the creation of a system for issuing compulsory licences, the ban on multi-representation and the capping of agent commissions.
1.Creation of a compulsory licence
The new regulations require agents to hold an agent’s licence. A number of eligibility criteria must be met to obtain one (including the absence of criminal convictions for a list of offences).
Future agents will also have to pass an examination consisting of a multiple-choice questionnaire designed by FIFA to test their knowledge of football regulations.
This licence allows its holder to offer his services throughout the world. It is personal and non-transferable, and is issued for an indefinite period, provided the agent continues to comply with the requirements for issuance of a licence, at all times.
The provisions relating to the procedure for obtaining the licence came into force on 9 January 2023. This entry into force, prior to that of the rest of the provisions of the regulations, was intended to enable agents to take the necessary steps to obtain a licence before 1 October, the date on which the other provisions came into force. It should be noted, however, that agents working in this field before 9 January 2023 had until 1 October to apply for an exemption from the examination.
2. Obligation to conclude a representation agreement within a strict framework
From now on, in order to be able to exercise their activity and provide their services, agents will need to have entered into a representation agreement. To be valid, this agreement must be in writing and must not exceed two years in duration. In addition, an agent may only enter into one agreement at a time with the same player or coach.
In addition, to limit conflicts of interest and protect clients from unethical behaviour, agents will in future be able to represent only one party in a transaction. A transaction within the meaning of the regulations corresponds to the employment, registration or de-registration of a player with a club or centralised league; the employment of a coach with a club, centralised league or member association; the transfer or registration of a player from one club to another; the drawing up, termination or amendment of the terms of a player’s or coach’s employment contract.
As an exception, the agent may provide agent services on behalf of an individual client (coach or player) and a receiving entity: a club recruiting a player or a coach, for the same transaction. This exception may only be implemented if the natural person client and the receiving entity have given their written authorisation for this dual representation.
3.Framework for the allowance received by the agent
The regulations introduce a cap on the service fee that the agent may receive for each transaction that he carries out. Depending on the nature of the client, this cap varies between 3% and 10% of the remuneration of the player or coach involved in the transaction.
The regulations also introduce the principle of payment by the client. This means that, as a general rule, agents must be remunerated directly by their clients for the agent services they provide. This principle is designed to protect the integrity of football and ensure that the transfer system operates smoothly. However, if the annual remuneration of the player or coach involved in the transaction is less than $200,000, the agent’s fee does not necessarily have to be paid by his client. Instead, it may be paid by a club, a member association or a centralised league that is also party to the transaction.
4.New reporting obligations
The regulations also include new reporting obligations for agents, who must upload certain information listed in Article 16 of the regulations onto the FIFA agents’ platform within 14 days of completing a transaction.
This information includes, in particular, the communication of the said representation agreement, information concerning the payment of the service allowance or any contractual arrangement between agents with a view to cooperating in the provision of services.
FIFA also has an obligation to provide agents with certain information, such as the names and contact details of all FIFA agents and all the agent services they provide to their clients.
5.The creation of a new dispute resolution body
Finally, a new dispute resolution system has also been created, called the FIFA Agents’ Chamber. This institution will be responsible for resolving disputes arising from the new regulations and from representation agreements with an international dimension or in connection with such agreements.
An agency agreement is considered to have an international dimension when it relates to agent services in connection with one transaction in the context of an international transfer, and when it relates to agent services in connection with several transactions, at least one of which involves an international transfer. The FIFA Agents’ Chamber is part of the FIFA Football Tribunal.
Appeals against final decisions handed down by this chamber must be lodged with the Court of Arbitration for Sport (CAS) within 21 days of notification of the reasons for the decision (Article 57 paragraph 1 of the FIFA articles of association).
Proceedings before this new body are free of charge.
II. The suspension of the new regulations
FIFA’s new agent regulations have not been met with unanimous approval since they came into force. A number of agents’ representatives oppose the cap on their service fees and have attempted to challenge the regulations before their national courts, arguing in particular that they infringe European Union law, and more specifically freedom of establishment and free competition between economic operators.
For example, the German courts have referred a question on this subject for a preliminary ruling, which the CJEU is expected to consider in the coming months. The question was worded as follows: “Must Article 101 TFEU (prohibition on cartels), Article 102 TFEU (prohibition on abuse of a dominant position) and Article 56 TFEU (freedom to provide services) and also Article 6 of the General Data Protection Regulation be interpreted as precluding rules adopted by a world sporting association (in this case: FIFA), to which 211 national sports federations of the relevant sport (in this case: football) belong, and whose rules are therefore binding in any event on the majority of the actors active in the respective national professional leagues of the relevant sport (in this case: clubs (which also means football clubs organised as capital companies), players (who are club members) and players’ agents)”
In France, the Federal Commission of Sports Agents (“CFAS”), the body responsible for implementing the regulations in France, has voiced its disagreement with this measure. It considers that, as the compensation paid to French sports agents is already capped at 10%, the introduction of a lower threshold would not enable a competitive balance to be maintained between agents. As a reminder, the new FIFA agent regulations provide for a cap on agents’ remuneration varying between 3% and 10% of the remuneration of the player or coach who is the subject of the transaction.
Outside of the European Union, four English agencies have also launched arbitration proceedings to challenge the transposition of the FIFA agent regulations into national law. At the end of November, the Football Association (FA) tribunal handed down an arbitration award declaring that the regulations did not comply with English competition law.
At the end of December 2023, several major federations, including the French Football Federation (FFF), subsequently announced that they would not apply FIFA’s agent regulations. These are the Danish Football Union (DFU), the Swiss Football Association (ASF-SFV), the Brazilian Football Confederation (CBF), the Royal Spanish Football Federation (RFEF), the English Football Association (The FA) and the Italian Football Association (FICG). Proceedings are also underway in Colombia and Venezuela.
These challenges come despite the fact that the Court of Arbitration for Sport (CAS) had found that the regulations were justified and proportionate in terms of the objectives pursued by FIFA and had therefore approved them.
Several European courts have suspended their rulings and referred the question of the validity of these regulations under European Union law, to the Court of Justice of the European Union (CJEU).
Against this backdrop, FIFA published a circular on 30 December 2023 setting out the temporary suspension of the contentious provisions of the regulations, pending the decision of the CJEU.
In conclusion, more than a year after its adoption, even though it had come fully into force, its implementation was suspended due to the uncertainties and questions of compliance with the various national legislations involved, which did not fail to provoke reactions from the football federations.