#29 Navigating the new FIFA Agents Regs: what happens next in Germany and England?
With the English FA Rule K arbitration decision due by 30 September 2023, Daniel Geey outlines the ongoing legal challenges to the new FIFA Agents Regulations across Europe.
The second FIFA football agent exam took place today after what has been an eventful few months for the football agent community. FIFA recently made a wide-ranging announcement exempting Germany from the implementation of their Football Agent Regulations (FFAR) and the largest football agencies have taken on FIFA in the UK. The latest challenge is just one of many that have taken place over the 2023 Spring and Summer period. A summary of the main FFAR elements can be found here.
⚽ Ongoing Cases
The first reported legal challenge began in late March 2023 where a Mainz court in Germany referred provisions of the FFAR to the EU Court of Justice (CJEU) for a preliminary ruling on FFAR’s compatibility with the EU competition rules.
On 10 May 2023, came a decision by a Dutch court dismissing a European Football Agents Association (EFAA) action injuncting FIFA from its FFAR implementation. Interestingly, the grounds appear to have been related to “a perceived lack of urgency” in requiring an injunction rather than the substantive competition law arguments around the commission cap, for example, (i.e., capping agent’s fees at a maximum of 6% of a player’s annual remuneration).
The very same month, on 24 May 2023 a German injunction[1] was however granted by a Dortmund District Court which prohibited specific FFAR provisions from being implemented (including commission caps). It has been reported that FIFA has appealed this decision.
On 19 June 2023, a statement on the FA’s website explained that “CAA Base, Wasserman, Stellar and ARETÉ have commenced arbitration proceedings to challenge the implementation by the FA of the National Football Agent Regulations (NFAR) relating to English domestic transfers.” In addition, “a decision will be given by an arbitral tribunal appointed under FA Rule K by 30 September 2023.”
On 24 July 2023, the CAS substantively ruled in FIFA’s favour in a detailed 89 page competition law assessment of the FFAR. For some, however, the difficultly in coming to definitive conclusions on parts of the CAS judgment is because the economic evidence produced by PROFAA “was simply not sufficient” with the CAS critical of the methodological weakness of the PROFAA report provided[2]. Indeed, there are parts of the decision where PROFAA did not look to contest any of FIFA’s evidence[3]. There was stinging criticism from various agent bodies including EFFA stating the case was “orchestrated by FIFA” “and a clear political move by FIFA”. Such pointed claims were not however particularised further.
⚽ Germany
Then, on 8 September 2023, FIFA provided details on how the above German injunction will practically work. Interestingly (at least for lawyers and German registered agents), FIFA clarified that:
“FFAR will… be suspended in their entirety for all transactions with a link to the German market.”
“A link to the German market will be deemed to exist as soon as any party to a transfer (agent, club, player or coach) has a link to Germany. The suspension of the FFAR will then apply to all parties to the relevant transaction, regardless of their domicile.”
This raises issues around agents who may not have passed the FIFA agent exam, but who are registered and licensed under the German regulations, being able to undertake work globally without having to adhere to FFAR and specifically the mandated commission caps. This could create a two-tier system where FIFA agents will be at a manifest disadvantage. They will not be able to charge higher than the FFAR prescribed commission cap amounts whilst their German counterparts presumably will.
⚽ England
With the above English FA Rule K arbitration decision due by 30 September 2023, it seems a sensible move by FIFA to put in place a process for Germany which presumably may need to be extended to England should the arbitral panel find in favour of the agents. As to the competition law merits of their arguments, there are a number of instructive decisions made by UK arbitral sporting bodies in relation to substantive competition law actions including London Welsh and LIV Golf.
One of the crucial arbitration elements will be in relation to the relief sought i.e., will there be a fundamental competition law FFAR assessment to determine the lawfulness of the regulations and/or an assessment of immediate harm to injunct the FFAR pending the CJEU referral referenced above. If it’s the former, it will make for fascinating reading bearing in mind the already published London Welsh and LIV golf UK competition law assessments plus the already conflicting CAS and German court decisions. Most likely there will be alternative positions put forward by the UK football agencies to cover all eventualities. Indeed, it would be an impressive feat by the arbitrators to provide substantive reasons prior to 1 October 2023 FFAR implementation. A decision will most likely be announced with (hopefully published) written reasons to follow.
In addition, it’s been reported that there will be variations to the FFAR in certain jurisdictions due to national law considerations. This EFAA post explains how, for example, in:
France, the French Football Federation will continue with a 10% commission cap post 1 October (substantially underlining the FFAR cap); and
Italy, dual representation, where an agent acting for a selling club and player, will be permitted (which is not the case under the FFAR). Only acting for the player and buying club will be permitted elsewhere.
⚽ Conclusion
With an English decision likely in the coming days, this blog’s shelf life may be rather limited. What will (hopefully), however, give this blog greater longevity are the developments across Europe. Referrals to the CJEU, the published CAS decision, German injunctions and a pending English decision leave some difficult decisions for FIFA and the football agency community. A decision in favour of the English agencies, will likely lead FIFA to broaden the FFAR suspension to encompass England as well as Germany. There may then be further questions asked about a possible overarching FFAR suspension especially if the highest profile and highest value English jurisdiction sides with the agents. It may ultimately mean matters will be left to the CJEU. Later this year or early next, the Court will answer the German referral questions to provide national courts with definitive EU law answers. It will likely (for this author at least) be a blockbuster decision.
[1] See the bottom of the page for the PDF decision https://www.fifa.com/legal/football-regulatory/agents/news/information-on-the-preliminary-injunction-granted-by-the-landgericht
[2] Para 244 of the judgement
[3] For example para 247 of the judgement
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