A webinar hosted by Law in Sport took place on 29 March 2023, which saw a number of key mediators from FIFA, namely Erika Montemor Ferreira, Jeffrey Benz & Jorge Esteban Ibarrola, provide further insight and guidance on how the new FIFA Mediation Guidelines will likely come into play (the Webinar).
In February 2023, FIFA announced amendments to its Mediation rules governing the procedure by which disputes can be resolved in an ever-expanding footballing world. As the growth of the beautiful game rises exponentially, questions of governance, regulation and enforcement have continued to rage behind the scenes. FIFA have now reviewed the alternative dispute resolution mechanisms, including procedural alterations and the prescribed methods with which to hear potential disputes. Members of the Howard Kennedy Disputes team, including partner Joel Leigh, were also in attendance at the Webinar which aimed to provide an overview of the changes.
The overarching objective of the amendments is to modernise the regulatory framework and create a single football tribunal, designed to provide an amicable and cost-effective approach. Themes highlighted by the FIFA panel included voluntary mediation, as well as confidentiality and discretion, at no cost. Each party is free to decide whether or not to agree to mediation, and to leave the mediation process at any moment.
With a modest number of initial settlements having already been reached under the new guidelines, it looks set to change the way that footballing disputes are handled. Santiago Liste from the Spanish Footballers Association has already used the process in a successfully mediated matter and has said that the new guidelines were able to "effectively identify the positions and interests of both the player and the club and reach a common point of agreement, which otherwise would not have been possible".
It is hoped that the amendment of the procedure will persuade parties to take a more cordial and stream-lined approach when resolving their disputes, before reverting to more traditionally contentious methods of dispute resolution; in other words, avoiding the high-cost alternative of litigious involvement from the Court of Arbitration for Sport (CAS).
When can mediation be used
Article 26 of the Football Tribunal (FT) governs the procedure of parties using mediation in football disputes. The mediation will need to be conducted in accordance with the general principles of the CAS Mediation Rules and must be through one of the approved mediators by the FIFA general secretariat. FIFA released a full list of mediators to oversee various jurisdictions, some of whom attended and delivered key pieces of procedural updates at the Webinar.
Brief Overview of the Procedural Stages
One of the main reasons for altering the approach to mediation was due to the fact that the FT have, and still, receive over 2000 applications annually. There is now a formulaic process as outlined in the Webinar:
1. Receipt of Claim, Scope and Referral to FIFA Mediation
Any claims brought forward by the relevant parties are first assessed by the FIFA administration. The assessment carried out includes jurisdictional and competence checks. In accordance with the FIFA Regulations on the Status and Transfer of Players (RSTP), the chairperson, or FIFA general secretariat, will then invite the parties to mediate if they deem it appropriate to do so.
2. Invitation to mediate
The parties are then instructed as to the process of the mediation itself; including agendas, itinerary, whether attendance is in person or virtually, as well as the outcomes of the mediation and relevant next steps.
FIFA will also issue a condensed list of approved mediators, in conjunction with the list above. Parties are then invited to nominate, by mutual agreement, a mediator from the list within five days; in the absence of such an agreement, the FIFA general secretariat will nominate a mediator.
3. Mediation Agreement & Commencement of Mediation
After the parties have signed a mediation agreement, the mediation will commence under the specific instructions of the mediator. The proceedings are kept completely confidential and the parties are instructed to keep discussions surrounding the mediation, and any possible settlements, private.
4. Settlement Agreement & Post-Mediation Ratification
Once a settlement has been reached between the parties, effectively resolving the dispute at hand, the Mediator will then inform FIFA of the result. One key notable difference in these proceedings, which differs from general mediation in England & Wales, is that the mediation process is binding on the parties. Once ratified, the FIFA Disciplinary Committee are able to enforce the conclusion of the mediation, utilising the pre-determined mediation agreement.
This area is governed by Article 25 of the FT, which stipulates that procedures are free of charge where at least one of the parties is a player, football agent or match agent. FIFA mediation, specifically, is also free of charge. However, parties may bear their own costs and FIFA will bear the costs of the Mediator.
In exceptional circumstances, the chamber may order that FIFA assumes all procedural costs.
Scope of the changes to Procedure
There are further stipulations as to when FIFA mediation can be used. The parties must be recognised under the Procedural Rules Governing the Football Tribunal and the FT will need to have jurisdiction to hear the dispute accordingly. In addition, the dispute cannot be affected by any preliminary procedural matter.
Should the mediation be successful, a settlement agreement will be executed by all parties and then ratified by the mediator and chairperson of the chamber. The most notable aspect of the new regulations is that the decision reached under the settlement agreement will be considered as a final and binding decision of the FT, a key difference from the traditional concept of mediation in England & Wales where mediations are not usually binding.
It's clear from the changes that FIFA are pushing for a more amicable and efficient mediation process between parties, by allowing them to attempt to settle their disputes via mediation before the usual contentious proceedings. It will be interesting to see what tools FIFA utilise in the first instance, when determining whether proceedings are appropriate for mediation, as well what variables they consider when making such decisions. Should a dispute not be deemed appropriate for mediation, it will also be interesting to see whether majority of the referrals go to toward the FT or directly via CAS.
Clearly, the process is intended to represent a further development of positive relations between FIFA's much vaunted "football family". It sits alongside and otherwise compliments the recent implementation of the FIFA Football Agent Regulations. Whether it will succeed in maintaining family relations, keeping members away from the doors of metaphorical divorce courts, remains to be seen, so watch this space.