Recently, FIFA published the CAS Award 2023/A/9938, on the football agent licensing requirements of FFAR. This is also the first decision concerning the application of FFAR.
Art. 5 FFAR provides several eligibility requirements, including that an agent-applicant shall “never been convicted of a criminal charge, including any related settlements, regarding matters related to: organised crime, drug trafficking, corruption, bribery, money laundering, tax evasion, fraud, match manipulation, misappropriation of funds, conversion, breach of fiduciary duty, forgery, legal malpractice, sexual abuse, violent crimes, harassment, exploitation or child or vulnerable young adult trafficking.”
In order to confirm that the aforementioned requirement was fulfilled by the applicant, FIFA requested a copy of his criminal records certificate, a copy of a decision of no prosecution and a copy of a decision for the dismissal of charges, if applicable.
Through the documents submitted by the applicant, it was shown that he was convicted (by a first instance criminal court) for the crimes of attacking the freedom of information and damage with violence.
In view of the above, FIFA rejected the application of the applicant because he was in breach of article 5 FFAR and therefore, he did not fulfil the criteria to be licensed as a Football Agent.
Main issues examined by CAS in relation to the breach of art. 5 FFAR
The applicant stated that he is not in breach of art. 5 FFAR because:
a. The criminal conviction is not final and binding and an appeal is pending before the competent court of appeal;
b. The conviction does not concern any of the crimes listed under art. 5 para. 1(a) ii FFAR.
In response to the above, FIFA stated that:
a. A First instance decision is sufficient to prevent the issuance of a FIFA Football Agent Licence;
b. The applicant’s conviction (damage with violence) falls within the category of ‘violent crimes’.
Considerations of CAS
Final and Binding Criminal Conviction
Art. 5 para. 1(a)ii FFAR does not state that the criminal conviction must have become final and binding or no longer appealable. The applicant had been convicted by the competent court, while the FFAR explicitly states that the applicant “must never have been convicted of a criminal charge”.
The Panel underlined that, if in the future the competent Court of Appeal decides that the applicant is not guilty, the applicant can submit a new application under which the reason for the non-eligibility would no longer exist.
The Panel also referred to the FFAR FAQs document, which mentioned in paragraph 3.7 that an applicant convicted for a first-instance decision cannot apply for a FIFA Agent licence.
Was the Appellant convicted of a violent crime?
The Panel took note of the fact that the applicant was not convicted for the crime of simple damage but for the crime of ‘damage with violence’, which qualifies as a violent crime. Since FFAR did not make a direct reference to specific offences or to a precise criminal law classification, the category of violent crimes shall include all the crimes involving the exercise of violence. The use of violence has also been confirmed by the grounds of the first-instance criminal court.