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On 16 December 2022, FIFA finally approved its new Football Agents Regulations. While some of the Regulations came into force from 9 January 2023 (mainly with respect to new agents applying for licenses), the substance of them is due to come into force on 1 October 2023 . National associations, such as the English FA, are required to bring in force regulations based on FIFA’s by 30 September 2023 .
Much has already been written by others about the new Football Agent Regulations and in chapter 13 of our book, ‘Football and the Law’ , Dan Lowen and I consider some of the more important developments. In this article, I want to focus on some of the controversial and potentially thorny legal issues that may arise.
In 2015, against the advice of many of the world’s largest football agents and lawyers specialist in the field, FIFA decided to scrap its previous licensing regime of football agents and replace it with the more ‘hands off’ Intermediary Regulations. FIFA’s public justification for the deregulatory step was that most transfers did not use agents, and it lacked the resources to effectively regulate agents; though many suspected at the time that the real motivation for the move was to try and weaken the role and influence of agents in international football by removing the licensing system and opening up the market. After 2015, the intermediary market became saturated with people often with little or no experience fighting over the same number of clients, and disputes between agents, or agents and players/clubs only increased, often without any effective means to determine them, as did regulatory abuses of the system.
For as long as we have a football transfer system, and with the amount of money some professional players can earn at the elite level, player agents are an inevitability. Players need skilled negotiators representing their interests in reaching agreements with clubs, who often have teams of lawyers and experienced directors working for them. FIFA apparently came to realise the 2015 deregulation was a mistake, and decided to re-introduce a licensing system, as well as the other necessary requirements that arise from it: for example the need for an arbitral and disciplinary dispute resolution system for agents .
The concept of a universal professional agent licensing regime, with examination entry requirements, and the recognition that football agents are a key component of professional football is to be welcomed in my opinion, as are many of the regulations themselves, and even the reversion to more appropriate language: finally ‘agent’ has come back in to replace ‘intermediary’.
In developing the Football Agents Regulations, FIFA has been criticised by many of the agents and their associations for failing to listen to or properly consult agents themselves. While the re-introduction of licensing apparently recognises agents as part of the ‘football family’ governed by FIFA, nearly all of the world’s agents and their associations have not been afforded the ‘stakeholder’ status other participants governed by FIFA have, and were not involved in formulating the Regulations. Concern has been expressed again that the real motivation for much of the regulation is a desire to weaken the bargaining position of football players by restricting their representatives.
One consequence of this is the most controversial aspect of the Agent Regulations: the ‘Service fee cap’. Articles 14 and 15 bring in, for the first time, a universal worldwide cap on the fees agents are allowed to charge their clients for the provision of their services. In a market where there is no cap on the amount of money clubs can pay on transfer fees, or pay their players (apart from the type of financial fair play rules that broadly allow clubs to spend in proportion to their income) the whole concept of a hard cap is highly controversial.
Article 15.2 provides that where an agent acts for a player or engaging club, their fee is capped at 3% of the player’s remuneration. Up until now, while no cap exists, industry practice suggests that most agents were able to charge fees representing between 5-10% of a player’s salary (of course some higher, some lower, depending on circumstances) – so the 3% limit is not only a hard cap where one does not exist elsewhere in football, it is one that if enforced would mean most agents would be able to earn considerably less money for providing the same services than they have been able to on the open market.
In addition, the concept of ‘multiple representation’ (where an agent, with the consent of the other parties, is able to act for player and club in a transaction) is now to be limited to only where an agent acts for an engaging club and player, in which case they can be paid a maximum of 6% of the Player’s earnings (being 3% from each party). But an agent representing a selling club is entitled to a fee cap representing 10% of the transfer fee received. This would appear to incentivise agents to act for selling clubs, and work to push up transfer fees to the benefit of the club, but to the disadvantage of the player whose registration is being sold, while at the same time driving down the commission an agent can earn for negotiating a player’s wages and limiting the choice players can have in appointing an agent on terms to be agreed. In my view, this reflects the real object, or at least shall be the real effect, of the Service fee cap.
Various large agencies and their associations have already indicated their intention to bring legal challenges (largely based on competition law) to the Service fee cap, and FIFA has yet to articulate any real justification for the measure, so whether or not it shall ultimately be enforced remains an open question.
By ‘ugly’, I mean to identify some of the potential thorny legal issues that may arise. There are many, as with any new regulations, but in my view the following four are of particular interest:
First, “Football Agent” is now defined as ‘a natural person licensed by FIFA to perform Football Agent Services’. It follows that football agency companies are no longer entitled to enter Representation Contracts with players and clubs, the agent must be a ‘natural’ person. The increasing tendency for family members to act for players will also be curtailed, unless, of course, those family members pass the requisite exams and obtain a license. And we can expect the policing of who is actually providing the Agent Services (whether a licensed agent or a ‘scout’ acting for an agency etc.) to be tightened up.
Second, Art. 12(14) provides that a Representation Contract may be terminated at any time by either party where there is “just cause” to do so, further explaining that: “There is just cause to terminate a Representation Agreement when a party can no longer reasonably be expected, according to the principle of good faith, to continue the contractual relationship for the agreed term. This includes, but is not limited to, the following situations: a) the withdrawal or suspension of a Football Agent licence; b) a ban on taking part in any football-related activity; c) a ban on registering new players, either nationally or internationally, for at least one entire registration period.”
There has been some concern that this might lead to some Players trying to terminate Representation Contracts on all kinds of spurious ‘just cause’ grounds, but in my opinion while that may be the immediate practical effect, the Article does not really alter the current legal position. While Representation Contracts are for a fixed term, where an agent is in fundamental repudiatory breach (e.g. according to English contract law), or in breach of their fiduciary obligations (for example by obtaining a secret profit), a player is entitled to terminate the contract with immediate effect. The concept of ‘just cause’, as defined, and with the types of examples given, is unlikely to go beyond this. It ought not to be enough for a player to complain the agent has not yet found them the move they wish for, rather the breach must go to the root of the agreement – making it impossible for the relationship to continue. The concept of ‘just cause’ may be a foreign one to English lawyers, but is fairly well established in the jurisprudence of the FIFA Regulations for the Status and Transfer of Players (‘RSTP’) and CAS where it is used to describe the narrow circumstances in which a player or club may terminate employment contracts pursuant to Art 14 RSTP. In the 2021 Commentary to the FIFA RSTP, the following principles (based on various cited CAS cases) are given as examples of where just cause under Art.14 would apply, and I expect ‘just cause’ in the Agents Regulations to be given a similar narrow meaning:
“– Only a sufficiently serious breach of contractual obligations by one party to the contract qualifies as just cause for the other party to terminate the contract.
– In principle, the breach is considered sufficiently serious when there are objective circumstances that would render it unreasonable to expect the employment relationship between the parties to continue, such as a serious breach of trust.
– The termination of a contract should always be an action of last resort (an “ultima ratio” action).”
Third, Art 13 provides that an Agent can only act for or even approach a minor player “no more than six months before the minor reaches the age they may sign their first professional contract in accordance with the law applicable in the country …. where the minor will be employed.” This creates two problems. First, it is common for clubs to negotiate (but not sign) playing contacts with minors and their families during a scholarship period, and before the Player is legally able to sign a professional contract (in England, on or after their 17th birthday). Unless such negotiation takes place less than 6 months before the player signs the contract, then the minor shall not be entitled to any assistance from an agent in the negotiation – whereas a club shall usually be experienced in such negotiations. It is difficult to see how such a rule protects, rather than exposes, a minor. Second, different national associations provide for different ages for when a player is able to sign a professional contact, and agents in countries which allow for lower ages than others shall inevitably be placed at an advantage in approaching and signing young players.
Fourth, while Agent Services are regulated, and the controversial Service fee cap described above relates to them, ‘Other Services’ (e.g. providing legal and financial advice, scouting, consultancy management of image rights and negotiating commercial contracts) are not. As the commercial value of elite players’ image rights, data and other non-employment contract attributes increases some of the more sophisticated agents may re-orientate their management model to concentrate on these non-regulated routes of increasing a player’s income and the agent’s remuneration. But this is not without danger. Not only does Art 16.3 prohibit an agent from circumventing the Service fee cap by increasing the charge the agent makes for such ‘Other Services’ but, more problematically, Art 15.3 provides that where an Agent has “in the 24 months prior to or following a Transaction” performed Other Services for a player, there is a presumption that “the Other Services formed part of the Football Agent Services performed in that Transaction, unless proven to the contrary”. Where an Agent fails to rebut that presumption, the Other Services shall be treated as part of the Service fee paid for Football Agent Services in the Transaction – and thus be subject to the Service fee cap. This is likely to cause a plethora of disputes about the value and scope of services provided.
The FIFA Football Agent Regulations represent the most important overhaul of regulations in this sphere for nearly a decade, and considering the increasingly significant role of agents in football, they are of considerable importance for all those involved in football transactions and football law alike.
Nick De Marco KC is a leading authority of football agents. He regularly acts for the world’s largest football agencies and their associations, as well as clubs and players, and he helped set up and lectures on the leading course for training sports agents in England at Loughborough University.
 Art. 28.1 of the FIFA Football Agents Regulations
 Art. 3.1, ibid.
 De Marco et al, Ed. 2, Bloomsbury, 2022, paras 13.117-13.132)
 Provided for in Sections VI and VII of the FIFA Football Agents Regulations.
 Except where the player earns $200,000 USD per year or less, in which case the agent can charge up to 5% but nb., this amount is substantially less i an average EFL Championship player in England will earn.
 See, e.g Imageview Management Ltd v Jack  EWCA Civ. 63.
 https://digitalhub.fifa.com/m/346c4da8d810fbea/original/Commentary-on-the-FIFA-Regulations-on-the-Status-and-Transfer-of-Players-Edition-2021.pdf, pp. 107-8.
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