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CAS 2024/A/10414 A. v. FIFA

Jan Kleiner

FIFA Director of Football Regulatory

Abstract:

A football agent filed an Appeal to CAS to challenge FIFA’s refusal to grant him a licence under the so-called “legacy path” provided under the FIFA Football Agent Regulations (FFAR). The agent invoked alleged technical issues with FIFA’s Agent Platform as the main cause for him to miss the deadline established under the FFAR to enter the “legacy path”. FIFA, on the other hand, argued that the Appellant was merely challenging an informative communication of FIFA, in which it reiterated a position that it had long taken in the past already, and that therefore there was no appealable decision. CAS declared the agent’s appeal inadmissible.

Keywords:

CAS, appeal, admissibility, appealable decision, football agents, licence, legacy path, FFAR.

CAS 2024/A/10414 A. v. FIFA

Jan Kleiner

FIFA Director of Football Regulatory

Summary: 1. Factual Background. 1.1. Licensing System under the FFAR. 1.2. The FIFA Agent Platform. 1.3. The Appellant’s Attempts to Register on the Agent Platform. 1.4. The Appellant’s Licence Applications. 2. The Appellant’s Appeal to CAS. 3. Considerations of the CAS Concerning Admissibility. 4. Conclusion

1. Factual Background

On 16 December 2022, FIFA adopted its FIFA Football Agent Regulations (“FFAR”). The FFAR were published on 6 January 2023. The FFAR, among other items, re-introduces a licensing system according to which only persons who hold a valid licence issued by FIFA are authorised to provide “Football Agent Services”, as defined in the FFAR.

A. (the Appellant) is a football agent based in Madrid, Spain. He is a FIFA pre-2015 licensed sport agent, also registered as a football agent with the Italian and Spanish Football Federations. A. wished to become licensed under the FFAR.

1.1. Licensing System under the FFAR

The FFAR establish several possibilities for an individual to obtain a licence to act as a football agent: (i) the so-called “exam path”, granting a licence to every person who passes an exam and pays the applicable licence fee; (ii) the so-called “legacy path”, converting old registrations under the registration regime that had been in place under the former 2015 FIFA Regulations on Working with Intermediaries towards a licence under the FFAR (without having to pass an exam), with a deadline of 30 September 2023 to apply for this legacy path; and (iii) the so-called “national law path”, converting a national licence from a country recognised by FIFA as having a national licensing regime, which is equivalent to the FFAR licensing requirements, into a FIFA license.

Article 23 of the FFAR defines the legacy path in greater detail and provides the requirements to obtain a FIFA licence through this path, as follows:

1. A person formerly licensed as an agent pursuant to the FIFA Players’ Agent Regulations (1991, 1995, 2001 or 2008 editions) is exempt from the requirement to pass the exam established by these Regulations, provided that:

a) they submit an application for a licence pursuant to these Regulations up to and including 30 September 2023;

b) they provide proof that they were licensed as an agent pursuant to the FIFA Players’ Agent Regulations (1991, 1995, 2001 or 2008 editions);

c) upon application, they comply with the eligibility requirements under article 5 of these Regulations;

d) as part of their application, they provide proof that they were registered as an intermediary, or were the owner, director, or employee of a legal person registered as an intermediary at a member association between 1 April 2015 and the date of the approval of these Regulations, pursuant to the RWWI or equivalent national regulations; and

e) after being confirmed as exempt from the exam by the FIFA general secretariat, they comply with article 7 of these Regulations.

2. If a former licensed agent meets the relevant conditions, they shall be issued a licence in accordance with article 8 of these Regulations. (…)

1.2. The FIFA Agent Platform

Licence applications must be submitted to FIFA via the FIFA Agent Platform (https://agents.fifa.com/home). The Agent Platform is a digital platform managing all licence applications. All licence applicants must register and create a profile on this platform, so that they can then submit a licence application.

1.3. The Appellant’s Attempts to Register on the Agent
Platform

On 6 February 2023, the Appellant registered himself as an agent in Italy, registering both before the Italian Football Federation (“FIGC”) and before the Italian National Olympic Committee (“CONI”) based on his FIFA pre-2015 licence. The Appellant successfully renewed his registration before both FIGC and CONI in November and December 2023.

On 27 March 2023, he attempted to register on the FIFA Agent Platform and to create his digital profile. However, because of an illegible identification document, the registration could not be completed. He received an automated message, inviting him to submit a different document. On 2 October 2023, the Appellant again tried to create an account on the Agent Platform, this time with success.

1.4. The Appellant’s Licence Applications

On 18 October 2023, the Appellant attempted to apply for a FIFA licence using the national law path under Article 24 FFAR. As this path is not available for holders of Spanish or Italian licences (it is available for FFF licence holders only), the Appellant selected the relevant field (holder of an FFF licence), but attached his Spanish licence.

On 1 November 2023, FIFA sent an email rejecting his application for the national law path, referring to the fact that the Appellant did not hold an FFF licence:

Dear Sir or Madam

Thank you for your application.

It seems that you have not submitted documentation which is relevant and/or sufficient for your licence application.

The reason for rejection of your application for the National Law Path with the French Football Federation is the following:

‘Ne détient pas de licence d’agent sportif F.F.F. conformément à l’article L222-7 du code du sport.’ In case of questions, please reach out to the French Football Federation directly.

We thank you for your attention to the above.

(…)

On 20 November 2023, the Appellant’s legal representative contacted FIFA, re-submitted the Appellant’s passport and invoked technical issues, which the Appellant had allegedly faced during the (initial) registration on the Agent Platform.

I write on behalf of [A.], FIFA pre 2015 licensed Agent (see RFEF licence attached hereto), who has incurred in technical problems while accessing the FIFA Agent Platform to apply to his FIFA licence. In particular, the video did not recognize [A.’s] passport during the application procedure. In this regard, I am attaching together with the pre 2015 FIFA Licences, the passport of [A.] to confirm his eligibility and complete his FIFA Agent’s licence application.

After internal verification with its IT services, FIFA confirmed to the Appellant that the system had not recorded multiple registration attempts. FIFA confirmed that other agents successfully used the Agent Platform without issues. On 17 January 2024, therefore, FIFA communicated the following:

Dear Sir,

Thank you for your e-mail, we acknowledge receipt of your query.

Firstly, we would like to inform you that the IT team has confirmed that the only time Mr. [A.] appears in ID recognition system, is on 2023-10-02 19:25:06. There are no other registration attempts.

Furthermore, we would like to remind you that the legacy application window closed last 30 September 2023 (and it was opened 9 January 2023), as indicated in our enclosure 2, in this regard we would like to stress that candidates, in general, are responsible for their application to become a FIFA football agent.

In light of the above mentioned, you would apply for 3rd FIFA Football Agent Exam, please be kindly informed that the Exam licensing path application window for the 3rd FIFA Football Agent Exam is open (see below). You will find relevant information in our dedicated website here (for example, how to become a football agent and in our FAQ).

3rd FIFA Football Agent Exam (22 May 2024)
Application window opens	9 January 2024 (afternoon CET/Zurich)
Application window closes	31 March 2024 (23:59 CET/Zurich)

Moreover, please be kindly aware that the full implementation of the new FIFA football agent regulations was last 1 October 2023, therefore, any intermediary providing football agent services around the world have to become a FIFA football agent from that date onwards. In addition, please find relevant information here link and in the online conference ‘Understanding the new FIFA Football Agent Regulations’ in which the Agents Department explains in detail the main principles of the new framework.

We advise you to regularly follow the relevant updates on www.fifa.com.

We thank you for taking note of the above.

On 31 January 2024, the Appellant’s legal representative contacted FIFA by phone, followed by a detailed email on 5 February 2024, reiterating the (alleged) technical problems with the Agent Platform and urging FIFA to consider the Appellant’s eligibility based on his previous attempts.

Dear Victor,

Many thanks for reaching out. I follow up my previous correspondence, attached hereto for your convenience.

In a nutshell, I am writing on behalf of FIFA pre 2015 Agent Mr [A.]. Mr [A.] is a very renowned and esteemed agent, albeit not very familiar with digital procedures as he is class of 1959. [A.] attempted to register himself uploading his Passport during spring 2023 through his collaborators and the undersigned through the FIFA Agent Platform, specifically between April and May, with the last recorded attempt through our law firm on June 10th, 2023.

In your reply (see attached) you kindly informed that “the IT team has confirmed that the only time Mr. [A.] appears in ID recognition system, is on 2023-10-02 19:25:06. There are no other registration attempts”.

However, I shall stress that this is not true, as I have been trying many times to upload Mr [A.’s] Passport and there has also been an exchange of correspondence at the end of March 2023 from notifications@agents.fifa.org (also attached). In the latter, FIFA stated that the Passport was not enlightened enough and thus decided to reject the application and reset and delete the entire file.

Therefore, the FIFA Agent Platform did not recognize Mr [A.’s] Passport during all and numerous attempts we made. To this extent, we tried to contact the Agent Department but at the time it was impossible to get in contact with the FIFA Agent Platform, nor was there in place any possibility to submit claims.

In light of all the above, it shall be taken into account that Mr . [A.] attempted many times and in good faith to complete the application within the prescribed terms, holding all the requirements to be awarded with the FIFA Agent Licence.

Therefore, a technical issue of the FIFA Agent Platform cannot jeopardize Mr. [A.’s] career requiring him to undergo the FIFA Agent Exam as a non-previous FIFA Agent.

I therefore respectfully request you take into consideration the above and confirm Mr. [A.’s] eligibility and allow him to complete his FIFA Agent’s licence application. I look forward to hearing from you.

Many thanks in advance.

(…)

Following a further investigation, the FIFA IT services re-confirmed that there was no record of multiple registration attempts. On 20 February 2024, FIFA reiterated that the legacy path application window had in the meantime closed and therefore advised the Appellant to apply for the next FIFA agent exam:

Dear Sir,

Thank you for your e-mail, we acknowledge receipt of your query.

We would like to stress again that the legacy path window was closed 30 September 2023. In this regard, we would like to highlight once more that the legacy path opened 9th January 2023 and closed 30 September 2023 (cf. Enclosure 2, Timeline).

Moreover, after thoroughly reviewing your application, including the information that you provided, we confirmed that on October 2023, Mr [A.] completed the registration process through the FIFA Agent Platform and applied for the National law path: Fédération Française de Football, however his application was rejected because he had not submitted documentation which was relevant and/or sufficient for his licence application (i.e.‘Ne détient pas de licence d’agent sportif F.F.F. conformément à l’article L 222-7 du code du sport.’). In this regard, considering the documents and information currently at our disposal, your licence application has therefore been rejected in the Platform.

Furthermore, we would like to point out that when applicants attempt several times to complete the ID verification and this generates an error message.

Applicants should contact the Support Team and they would have been able to inform them accordingly. Indeed, during the last registration period, users were able to contact via support@agents.fifa.org, and, for example, if the verification process fails, the user should try again or try using an alternative document to complete the process.

Lastly, we would like to remind you that the Exam licensing path application window for the 3rd FIFA Football Agent Exam is currently open.

Please be aware that to obtain a licence to act as a Football Agent, you must apply via the FIFA Agent Platform.

We thank you for taking note of the above.

(…)

2. The Appellant’s Appeal to CAS

The Appellant filed an Appeal to CAS against this last communication of FIFA of 20 February 2024. From the outset, FIFA challenged the admissibility of this Appeal, taking the position that this communication of 20 February 2024 did not qualify as an appealable decision.

FIFA put forward, in particular, the following arguments:

• The communication of 20 February 2024 was not a decision, but merely a communication reiterating points which had all been notified, decided and communicated previously by FIFA to the Appellant.

• The information that the legacy path window had closed on 30 September 2023 had already been provided to the Appellant by FIFA on 17 January 2024. To the extent that FIFA’s 17 January 2024 communication might have qualified as a decision, it was not legally challenged and thus became final and binding.

• The information that the national law path application had been rejected had been notified to the Appellant already on 1 November 2023. To the extent that the notification in FIFA’s 1 November 2023 communication might have qualified as a decision, it was not legally challenged and thus became final and binding.

• The 20 February 2024 communication did not have any animus decidendi. It also did not affect the legal position of the Appellant.

• The Appellant should not be allowed to reiterate earlier arguments, only to seek the issuance of a new decision and to thus artificially extend the deadline to Appeal to CAS.

In response, the Appellant put forward the following:

• In the Appellant’s view, FIFA’s 20 February 2024 communication constituted a decision issued by FIFA and the Appellant had exhausted the legal remedies available to him prior to filing the Appeal, in accordance with the Statutes and regulations of FIFA.

• FIFA’s 20 February 2024 communication unduly jeopardized the Appellant’s right to have his pre-2015 FIFA agents’ licence recognized by FIFA, stating that the Appellant should take the exam path, regardless of him already holding the requirements in light of his former licence and his several substantiated attempts to register and apply for licence conversion on the FIFA Agent Platform.

• The 20 February 2024 communication met all the criteria to qualify as a decision as established in CAS jurisprudence, while neither the 1 November 2023 nor the 17 January 2024 Letters contained any ruling or animus decidendi.

3. Considerations of the CAS Concerning Admissibility

Before addressing the admissibility of the Appellant’s Appeal, CAS recalled the content of Art. R49 of the CAS-Code:

In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or in a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against. The Division President shall not initiate a procedure if the statement of appeal is, on its face, late and shall so notify the person who filed the document. When a procedure is initiated, a party may request the Division President or the President of the Panel, if a Panel has been already constituted, to terminate it if the statement of appeal is late. The Division President or the President of the Panel renders her/his decision after considering any submission made by the other parties. (…)

Further, CAS recalled that pursuant to Art. 57 of the FIFA Statutes, an appeal to CAS must be lodged within 21 days of receipt of the decision in question.

CAS then set out the key question, i.e., how the various communications or letters of FIFA (notably the ones of 1 November 2023, 17 January 2024, and 20 February 2024) qualified from a legal perspective. In this respect, CAS summarized the crucial issue in this case as follows:

“Stated differently, if all matters legally affecting the Appellant have already been decided and communicated by FIFA to the Appellant in FIFA’s 1 November 2023 Letter and FIFA’s 17 January 2024 Letter, then the appeal is untimely as it was filed well beyond the 21-day deadline per Article 57 of the FIFA Statutes from the respective dates of these letters which preceded FIFA’s 20 February 2024 Letter. If, on the other hand, FIFA’s 20 February 2024 Letter decides and communicates for the first time all or some of the matters legally affecting the Appellant, and if all other needed elements rendering such communication a decision do exist, then the appeal filed on 12 March 2024 within 21 days of FIFA’s 20 February 2024 Letter is admissible.”

CAS then recalled its ample jurisprudence defining when, and under which circumstances, communications qualify as decisions in a legal sense, notably as follows:

• The form of a communication has no relevance for the determination as to whether there exists an appealable decision.1

• Whether or not a letter qualifies as a decision depends on its contents, not on its form.2

• The term decision must be interpreted in a broad manner.3

• The decisive criterion is whether or not the act in question impacts upon the legal situation of the Appellant. If that is the case (independent of what the intentions of the relevant sports organisation were), there must be access to justice for the person concerned.4

• A decision is a communication of a federation, association or sports-related body that is not just of a mere informative nature but also contains, in substance, an actual ruling or resolution which affects in a binding manner the legal situation of the addressee. In other words, it is a communication that contains an animus decidendi, i.e., by its objective content (and irrespective of its form) it conveys to the addressee(s) the will of the sports body to decide on a matter.5

Against the above background, and in light of the parties’ submissions, CAS went on to determine whether FIFA’s communication of 20 February 2024 qualified as a ‘decision’ or whether it was merely a confirmation of decisions taken and communicated earlier, notably in FIFA’s communications of 1 November 2023 and 17 January 2024.

In this respect, CAS concluded that on 1 November 2023, FIFA clearly communicated to the Appellant that the national law path application was rejected. Similarly, CAS held that on 17 January 2024, FIFA clearly communicated to the Appellant that the legacy application window had closed on 30 September 2023 and that therefore any application beyond that timeframe was untimely.

CAS considered that the 20 February 2024 communication did not make any other ruling, and did not provide any clearer, more specific or more detailed determination or explanation. It merely repeated what had been stated and communicated before.

CAS also reiterated its earlier jurisprudence, according to which it was not appropriate to artificially extend a deadline to appeal by repeating questions to FIFA, asking for more information or requesting reconsideration of FIFA’s position, and to then seek to challenge one of FIFA’s confirmations of its original statements or decisions.6 CAS was clear that such requests cannot be used to “restart the clock”.

4. Conclusion

On the basis of the above considerations, CAS concluded that the Appellant’s appeal was inadmissible:

“Since FIFA’s 20 February 2024 Letter is not a “decision” as its operative parts relating to the rejection of both the “national law path” and the “legacy path” merely repeat such decisions or information provided earlier, since the Appellant failed to appeal the original notifications in regard to such matters and since this appeal was filed well beyond the expiration of the respective 21-day deadlines in regard to FIFA’s 1 November 2023 Letter and FIFA’s 17 January 2024 Letter, this appeal is inadmissible.”

This conclusion is in line with earlier jurisprudence and does not suggest any departure from established principles. It reiterates the well-known criteria to assess whether a communication or notification legally qualifies as a “decision” subject to appeal.7 It also re-confirms the important principle that it is neither possible nor appropriate for parties to artificially extend a deadline to appeal by seeking the re-issuance of a decision and to thereby obtain a new possibility for an appeal.

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