Following on from my recent article looking at an overview of proposed changes to the Football Agent Licensing and Regulations from FIFA, I have also taken a look at the initial proposals from The FA.

As mentioned in another article I have been fortunate enough to be privy to some advance documents from both FIFA and The FA (Football Association of England) detailing some initial proposals for changes to the football agent (intermediary) regulations. Whilst these are both in the early stages and seem to be just outline documents and basic proposals, I felt it fair that I should try to look objectively at both sets of proposals and analyse how workable and realistic they look to be in addressing the current problems and issues regarding football agent activity.


Please note this information and the subsequent analysis does not emanate officially and/or directly from FIFA, but from various sources who have been able to relay the outline of discussions and subsequent proposals thus far.

Rather than cram all of the proposals into one article it has been necessary to split them across multiple documents as some are quite substantive and cover a variety of proposals (particularly those proposals from FIFA).

For this article I will be focussing on the proposals from The FA, but I would warn you not to get too excited as when compared to FIFA these seem to have been put together more as an afterthought and a response to those proposals from FIFA, which seem to have been given more consideration and had more thought put into them. Many of the proposals constitute rewording of current regulations or even the rejuvenation of regulations from the past.

I have also been made aware by an FA official that whilst these proposals are the only ones more openly available from The FA (in March/April 2019), the draft for new regulations is completed and will be presented to FA Council in May 2019, but is not openly available (even to a core participant group that it arguably affects the most – I.e. FA Registered Intermediaries).

However, in summary I hope that the draft regulations are far more substantive, relevant and effective than the initial proposals that follow which are very disappointing (but not surprising in that case).

Creation of an obligation on an Intermediary shall always act in the best interests of the club and/or player for who he acts and in a fiduciary duty.

This is pretty much a pointless proposal from the FA and just rewords and reiterates what has previously been a duty of care to the client (whether player or club) and acting in their bests interests as per the regulations prior to 2015.

It is also worth pointing out that football regulations aside, this is part of the ‘law of agency’ in terms of the agent upholding their fiduciary duty (which is itself somewhat comical as I personally have had to clarify to FA officials and other stakeholder representative in the past, the meaning of ‘fiduciary duty’ when referred to in working documents submitted and in associated conversations).

Requirements for an intermediary acting under a Representation Contract for a Player to advise the Player of every offer made by any club in relation to a players remuneration under an existing or potential contract of employment within 24 hours

The sentiment of this proposal is understandable and somewhat implied in the current regulations/contracts, but the practicalities are less so and as such it needs further refinement and pragmatism – not least more empathy in better understanding the circumstances that could affect both the agent and player. For example:

The requirement to inform within 24 hours may under certain circumstances be impractical such as if the player is on international duty, or with an imminent match to prepare for (not to mention personal circumstances).

In addition to this if every offer however speculative was relayed to a player this would often lead to confusion and unnecessary distraction for that player. Also, there is a question mark here over whether relaying such information to a player still under contract (and not in the last 6 months of contract or transfer listed), would contravene the regulations in being perceived to encourage a player to breach their employment/playing contract and on the grounds of facilitating an ‘illegal approach’ (tapping-up).

Surely the best approach would be that at the request of the player the agent would be able to provide such information within 48 hours of receiving such a request. Needless to say, most agents would not conceal such an offer under most circumstances should it be of benefit to both themselves and their player-client – not least as this is part of the agents ‘fiduciary duty’.

Requirement for any intermediary registering in England to operate a bank account with a financial institution and register it with the FA.

Again, another proposal that although seems to be common sense, is little more than a refinement, as the bank accounts of agents already have to be registered with the FA otherwise payments via the FA clearing house could not made. The matter of it being intimated that it should be a UK financial institution is an interesting one, and although this makes sense (and has been suggested by many in the past), it is my belief this has only been prompted by other authorities such as DCMS and HMRC questioning how the FA handle agent payments that go outside of the UK.

Intermediary to be prohibited from receiving any remuneration of any nature in any other account from a Club/Player

Clubs and players are prohibited from paying any remuneration of any nature to an Intermediary into any other account.

The matter of payments by clubs to such an account is a pointless one as all payments by clubs to agents should be made via the FA clearing house already. Also, in reference to payments from players these are more often than not made on behalf of the player by the club, hence once again through the FA clearing house.

This is pretty much a pointless proposal from the FA and just rewords and reiterates what has previously been highlighted as a duty of care to the client (whether player or club) and acting in their bests interests.

The only other purpose I can see in these regulations is prompted by one of the new proposals from FIFA, regarding making banking statements available to the authorities from the accounts used for receiving payments, and as such The FA are looking to cover off a means of addressing this.

An intermediary or intermediary organisation to be required to submit an annual return (in such form and for such period as shall be determined by The FA from time to time) each Player with whom they have represented in the period covered.

This proposal can be interpreted in one of two ways:

  • that the annual return is for the player (client), or
  • the annual return is for the FA.

The first scenario is somewhat questionable, and some would suspect a means to try and unsettle the relationships between agents and players. Given that the player sees the terms of representation on concluding the representation agreement and then sees similar terms on signing a playing contract, the mandatory requirement for the player to be given an annual return by the agent is somewhat unnecessary. Whereas the right of the player to request in writing such a statement from the agent within a reasonable period of time should be acceptable and a more sensible approach.

In the second case of the return being solely for the FA this is to an extent the rebirth of an old FA requirement of annual returns that previously existed (i.e. AG2 and AG8 forms), however the FA rather surreptitiously withdrew this requirement without telling relevant participants (i.e. agents). My cynical side suspects the withdrawal of the declarations previously was on the basis that the FA were instructed legally to make more information readily available to the likes of HMRC with regards to agent transactions and thus chose to withdraw the declarations to reduce the burden on themselves.

The reintroduction of such annual declarations won’t be welcomed by many agents who previously had to contend with the monotonous task of completing the old returns with information that was often duplicated and unnecessary. Overall processes seemed mismanaged, ill conceived, relatively pointless and somewhat a waste of time resulting in resistance from agents.

When compared with the recent proposal from FIFA this does seem both somewhat a convenient addition, as well as contradictory given that one of FIFA proposals suggest the development of the FIFA TMS (transfer matching system) to allow agents access to submit such transactional data on-line.

An intermediary or intermediary organisation to be prohibited from entering into any form of sponsorship agreement with a club.

Although this proposal (on the face of it) makes perfect sense in terms of potential ‘conflicts of interest and also a means to exercise influence, the question needs to be asked as to whether the FAs reasoning for it is their acknowledgement of known breaches of existing regulations.

However rather than prohibit this practice would it not be better to encourage an open and honest declarations whereby permission could be granted by the FA prior to entering into such agreements, and avoiding the potential for other methods of circumventing the regulations. In addition to this, prohibition may preclude support for participants lower down the ‘football-ladder’ benefiting whereby such support could be of great value to the recipients but not necessarily a means of indiscretion by the agent/intermediary.

There also needs to be clarity between the agent being affiliated to the sponsoring party or whether they facilitate a sponsorship agreement, as in the case of the latter this is a commercial arrangement and arguably falls outside of the remit of the FA and subsequent agent/intermediary regulations.

A club to be required to disclose to the FA any agreement of any nature it enters into with an intermediary or intermediary organisation regarding the provision of that intermediary services.

It was my understanding that this requirement already existed (and has done for some time) in that both the club and agent have a duty to disclose any agreements that could be considered to be a conflict of interest, along with any payments received by the agent from the club and vice-versa.

An Intermediary must not, either directly or indirectly, make any approach to, or enter into any agreement with, a player in relation to any intermediary activity before 1st January of the year of the players 16th birthday. For the purpose of an approach in the context of this rule, contact via any social media is also prohibited.

Again, this is just a modification and clarification to existing regulations rather than an improvement to regulations to include a reference to social media (although this has already been communicated by the FA previously). Also, it is worth noting that the definition of ‘intermediary activity’ is still somewhat unclear and open to a considerable amount of interpretation.

An intermediary must not, either directly or indirectly, make any approach to, or enter into any agreement with a player between 1 January of the year of the Players 16th birthday and the date of his eighteenth birthday in relation to any intermediary activity without first obtaining the written consent of the players parent or guardian.

This is a worthwhile enhancement on previous regulations requiring a minors legal guardian(s) to counter sign any agreement between player and agent. However there may well be question marks as to how practical and feasible it is to obtain written consent from the guardian(s) prior to approach given that : (i) the flurry of activity around 1st January in the year of the players 16th birthday, and (ii) how to obtain permission from the guardian(s) if they cannot be readily identified. As such a period prior to this may be a feasible period to seek such written permission.

An Intermediary must not have, either directly or indirectly, any interest of any nature whatsoever in relation to a registration right or an economic right. This includes, but is not limited to, owning any interest in any future compensation or any future transfer value of a Player or payments contingent on the future transfer of the player.

This is again another enhancement on an existing regulation rather than an improvement, which on a personal level does have specific resonance with myself given that I raised a related query with the FA which took approximately 9 months to get anywhere close to an actual answer.

Whilst I don’t necessarily agree with this restriction as I believe controls and capping of contingent and future transfer fees sums may in effect reduce initial agent fees; I do recognise the regulation as being a plausible measure. However, as I have argued on many occasions I do believe such regulations can be perceived as confusing if not conflicting with the following regulation.

This does not prevent an intermediary acting solely for a Club in relation to a Transaction to transfer a players registration being remunerated by reference to the total guaranteed amount of the transfer compensation generated solely by that transaction.

Given that this regulation over many years has been regularly amended, from a stage of prohibiting a percentage of the transfer fee and then prohibiting a ‘scaling mechanism’ relating to the transfer fee, the means of referencing the total amount to the remuneration is still unclear and open to interpretation. As such an agreement that relates to the transfer fee in multiplying it by 0.1 still amounts to a 10% calculation. Likewise is it going to reach the stage where a complex equation using pi facilitates the same objective rather than transparency using a percentage and/or scale that is neither to the detriment of club or player.

And whilst there could be an argument that this is still technically a form of TPO and/or owning an interest in the registration right of a player surely clarity is required on this matter.

To prohibit an Intermediary from entering into an agreement that commits a Player to entering into an agreement that commits a Player to entering into a Representation Contract at a future date.

Contracts with effective dates of no longer than one month post date of signature will be permitted.

Yet again this is a re-iteration of a long-standing regulation that dictates a representation between player and agent cannot be for a period of more than two years (but can be renewed), and with that it cannot be tacitly extended for a period longer than two years. The matter of allowing what in effect are pre-contract representation agreements is again nothing new as an existing agent can renew his representation agreement with a client at any point, and under past regulations an agent used to be able to approach any player in the last month of their representation agreement with another agent.

The following matters are considered by The Association to be Disqualifying Conditions for an applicant or Intermediary :

  • Currently having an unspent conviction (or where the Rehabilitation of Offenders Act 1974 does not apply for any reason, having a conviction within the period that would have rendered that conviction unspent had the provisions of the Act applied) for any offence (including any attempt to commit the same) anywhere in the world that The Association considers to fall within the category of sexual/violent and/or financial and/or dishonest crime and/or a crime that causes serious injury and/or death.

Again, here I am seeing an example of a quick and basic enhancement to a current regulation rather than a rewriting of the regulations for the overall improvement of the regulations and the benefit of the sport and its participants. Enhancement is welcome but the question has to be asked why such criteria haven’t been implemented before in the regulations and the ‘Test of Good Character’ executed by the FA previously, and how the FA intend to apply this to those that are already registered.

To increase the accreditation requirements for Intermediaries who wish to work with Minors.

For me this is almost an afterthought from the FA, probably down to the increased pressure on them in recent years to address safeguarding concerns for the protection of minors and vulnerable persons.

Having made this recommendation (and many others) to the FA time and time again for many years (dating back to when I was General Secretary of The AFA), it seems that eventually the ‘penny has dropped’ that agents need to undergo the same safeguarding education that has been mandatory for coaches for many years. The fact that I and others have been dismissed, ignored if not laughed at for such a suggestion does not sit well, especially for something that could and should have been implemented many years ago for such an important issue.

Whilst I am commenting on the safeguarding issue and this relative afterthought from the FA, it is also worth noting the arguable retrograde steps the FA took in 2015 regarding the representation of minors by agents/intermediaries and if/how this education proposal will be implemented. As such, will the education be mandatory for all registered intermediaries/agents or just those authorised to represent minors? After all, the FA decided in 2015 to split the group and even though agents/intermediaries may operate in the same location as minors, if they didn’t intend to represent minors they didn’t need to undergo DBS checks. In light of this surely a sensible approach would be to revert back to the same checks for all intermediaries along with the newly proposed mandatory educational requirement.

For Intermediaries/Intermediary Organisations entering into settlement agreements with another Intermediary/Intermediary Organisation in relation to the movement of a player from one Intermediary to another to lodge these with the FA

The relevance of this proposal is rather lost on me, in that it cannot be for the purpose of tracking representation and the possibility of ‘fronting’ as the representation agreements would be lodged with the FA as a matter of course, and any changes in representation would need to be authorised quite rightly by the player in question.

The primary reasoning given by the FA for this proposal is the existence of such agreements where a percentage of future transfer fees is referenced as part of the agreement. However, as this is already prohibited under normal regulations, the reasoning for such agreements to be lodged with the FA as a matter of course (and not part of an investigation) is somewhat questionable.