The German Court upholds the rejection of the application of the FIFA Football Agent Regulations (FFAR). The legal battle will reach its boiling point later, when the Court of Justice of the European Union answers the preliminary questions concerning the FFAR.
In December 2022, the FIFA Council approved the FFAR, which came into force on January 9, 2023. The FFAR provide a new legal framework for brokers and the execution of their services. This should be seen as a replacement for the FIFA Regulations on Working with Intermediaries.
FIFA's goals were to set a minimum standard for the level of football agents. This will help strengthen contractual stability, protect the integrity of the transfer system and achieve greater financial transparency. According to FIFA, all this will lead to better protection for stakeholders, such as football players and coaches.
The main changes that the new rules brought about to achieve these goals included:
From a practical point of view, it is not hard to see that the new rules were not warmly received by everyone in the sector. Agents have joined forces and are fighting the legal battle against the introduction of the FFAR.
The district court in Dortmund has issued an interim injunction preventing the German Football Association from implementing the FFAR until the Court of Justice of the European Union has ruled on this matter. The main reason for this is that the Court considered that the FFAR could contain an anti-competitive element.
In April 2023, the Mainz District Court asked the Court of Justice of the European Union for a preliminary ruling on this subject. The court asked the Court of Justice of the European Union whether (1) it is prohibited to limit the fees paid to the agent and whether (2) third parties are prohibited from paying the fee due to the agent under a representation agreement.
The Dortmund District Court did not choose this route because, in its opinion, it was urgent to issue a ban, as referring the case to the European Court of Justice will be a time-consuming process.
The ruling of the interim relief judge in the Netherlands on 10 May 2023 was more in line with the Mainz court, because it also gave no substantive opinion. Because the Dutch court, like all national judges, is bound by the rulings of the Court of Justice of the European Union, the Dutch preliminary relief judge has decided in the dispute between the European Football Agents Association (EFAA) and Pro Agent on the one hand and FIFA, on the other, that the judgment of the Court of Justice of the European Union should be awaited to prevent any incorrect decisions. That is why the Dutch preliminary relief judge dismissed the claims of EFAA and Pro Agent. There is doubt about the validity of the arbitration agreement between FIFA and football agents, as these brokers are not members of FIFA. The preliminary relief judge ruled that it was not within his jurisdiction to make a substantive opinion about this.
On Wednesday, March 13, 2024, the Düsseldorf Court of Appeal confirmed the previous ruling by a district court in Dortmund. This will maintain the interim injunction and the FFAR will still not be allowed to be implemented until the Court of Justice of the European Union has ruled on the anti-competitive effect of the rules for player agents.
This is another setback for FIFA. Earlier, FIFA announced through its official channels that it will delay the implementation of the relevant articles, which are under discussion, until the Court of Justice of the European Union has ruled on this matter. Nevertheless, FIFA remains convinced that introducing the FFAR is a necessary, proportionate and fully legal step to address the systemic errors in the international transfer system. Not only all stakeholders in the football world, but also all European political authorities have confirmed the importance of such a regulatory framework.
The main questions that the Court of Justice of the European Union must answer relate to FIFA's authority to impose such rules on players' agents, as they are not members of FIFA, and whether or not FIFA is violating EU competition law by imposing these rules.
In this ongoing legal saga, the outcome remains uncertain, but one thing is clear: the battle over regulating player agents is far from over. The interim injunction before the Court of Justice of the European Union promises to be a crucial moment in this ongoing debate, with consequences that go beyond the boundaries of the football field.
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Stef van der Veldt
lawyer
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