We have been waiting for this for a long time, and a lot has been written about it: Today, the first part of the new FIFA regulations on working with intermediaries comes into force. According to the FIFA, it wants to put an end to the prevailing "law of the jungle" and is therefore establishing strict rules for player intermediaries and agents, despite broad criticism from player intermediary circles.
The new "FIFA Football Agent Regulations" (hereinafter "FIFA Intermediary Regulations" or "FFRA") provide for the following innovations:
Application to international transfers
The new regulations apply to all intermediary activities that have an international dimension. The FIFA definition is broad. An intermediary activity (falling under the FIFA regulations) exists for any activity of an intermediary that is related to an international transfer or an international transaction (Art. 2 para. 1 lit. b FFAR).
Validity also for coaches
After FIFA has already extended the applicability of the FIFA regulations regarding the status and transfer of players to coaches, the new intermediation regulations are also applicable to intermediation services in connection with coaches.
National associations must follow suit
The new intermediation regulations are applicable 'only' to international intermediations according to the scope of application. Nevertheless, Art. 3 FFAR provides that the national associations have to incorporate the majority of the substantive provisions into their national regulations on working with intermediaries. These takeovers (in particular the provisions on limiting intermediary commissions) are to be implemented by September 30, 2023. The establishment of stricter regulations than those in the FIFA Intermediary Regulations is permissible.
Reintroduction of the licensing system and the professional examination
Anyone who wishes to act 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 procedure, which it had abolished in 2005. The examination 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 becoming a mere formality. The knowledge of football regulation is tested.
Written intermediary contract with fixed term
Intermediaries must conclude a written contract with their clients, in which the contractual services are defined. Agreements between an intermediary and a player/coach must not exceed a term of two years. An extension by means of a new contract is possible; however, clauses on automatic extension are not permitted (Art. 12 FFAR). An agency contract can only be terminated prematurely 'for good cause' ('just cause'). A termination without good cause results in a claim for damages by the other contracting party. From a Swiss perspective, this provision is likely to be in conflict with the right of revocation at any time under Art. 404 CO, which, according to the Federal Supreme Court, is mandatory law. It is to 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 Intermediary Regulations prohibit the representation of multiple parties in a transfer, but with one exception, which - as of today - is probably the norm: It will still be permissible for intermediaries to represent the receiving club and the player simultaneously. However, the precondition is that both represented parties give their written consent prior to the transaction. On the other hand, dual representation of the transferring club and player, as well as representation of both clubs, is prohibited (Art. 12 para. 8/9 FFAR). Accordingly, it will no longer be permissible to demand compensation from the transferring club as an agent of a player (in particular for assisting in the premature termination of a player's contract).
Limitation of Intermediary Commission
This is, to some extent, the heart of the new FIFA Intermediary Regulations. No other measure has been more controversially discussed in advance. In particular, it is questionable whether the limitation of the commission withstands a competition law review (cf. in particular the publication of the author). When representing a player or the receiving club, the maximum commission is calculated based on the player's annual gross remuneration (i.e. basic salary, sign-on fee, bonus). With a gross remuneration of USD 200,000 or less, the commission is limited to 5% of the player's gross remuneration. If the gross remuneration exceeds USD 200,000, the maximum commission is 3% of the gross remuneration. When representing the transferring club, the intermediary commission is limited to 10% of the transfer payment. All payments to intermediaries must be made through the newly established 'FIFA Clearing House', a FIFA settlement office through which payments are centrally processed.
Due diligence and information obligations
The FIFA Intermediary Regulations provide for a number of additional due diligence and information obligations 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 will in future be decided in accordance with Article 20 FFAR by the 'FIFA Football Court' (although, contrary to FIFA's own designation, this is neither a state court nor an arbitral tribunal). The right of the parties to refer to a competent state court remains reserved (particularly in view of the (non-)applicability of Article 404 OR, this is likely to be of some relevance for Swiss matters). In addition, FIFA (in particular the Disciplinary and Ethics Committees) has the right to impose sanctions on intermediaries in breach (Article 21 FFAR).
Transitional provisions
Intermediary agreements with a longer term than until October 1, 2023 do not require any changes, but they should not be extended without complying with the new regulations.
A review of the new FIFA Intermediary Regulations leaves no doubt: FIFA is keeping intermediaries on a short leash. In doing so, it accepts that the new regulations will significantly interfere with competition. Anyone who wants to be active as a football intermediary after October 1, 2023 - when most of the regulations come into force - would do well to start implementing the regulations now. The negotiating position of clubs and players will be strengthened by the new regulations. In particular, the limitation of the intermediary commission is likely to simplify negotiations with intermediaries (especially regarding the intermediary commission).
Addendum I
According to statements by FIFA, the SECO's licensing requirement for employment agents does not constitute an exception within the meaning of the FIFA Placement Regulations. This means that Swiss agents must also be licensed and pass the FIFA test.
Addendum II
Because several courts have concluded that these could violate EU competition law, large parts of the FIFA Intermediary Regulations were repealed just a few months after their introduction. The ECJ will now decide. A judgment is expected in the first half of 2025.
