On January 9, the first part of the much-discussed FIFA Football Agent Regulations (FFAR) came into force. These regulations strictly regulate the actions of football intermediaries. The other parts of the FFAR will follow on October 1; at least that is the intention of FIFA. The intermediary guild received the new FFAR very critically. In particular, the mandatory salary cap and the reintroduction of the exam requirement hit a sore foot. The European and Dutch interest groups EFAA and Pro Agent wanted to stop this by asking the Utrecht District Court's preliminary relief judge to suspend the entry into force of the FFAR.
Intermediaries around the world were eagerly awaiting this first court ruling on the legality of the FFAR. This week, the court ruled, but does the verdict live up to the high expectations? One can be brief about this. No, it doesn't. The preliminary relief judge does not want to bother with the complex matter of the FFAR and is therefore not suspending the entry into force of the FFAR.
As is often the case, the preliminary relief judge does not consider himself the right authority to give a substantive opinion on complex laws and regulations such as the FFAR. What the preliminary relief judge then remains a relatively marginal consideration of interests. Are the interests of the agents affected to such an extent that taking an interim injunction is justified? The court answers this question in the negative, at least this has been made sufficiently plausible. For a substantive review of the FFAR, the court refers to an ongoing substantive procedure filed by the EFAA and Pro Agent, which also challenges the legality of the FFAR.
Although the court does not want to comment on the content of the FFAR, the ruling does have an interesting consideration about the scope of the FIFA statutes. Indeed, this includes a provision that requires all FIFA members to be subject to the arbitration court of the CAS, the international court of arbitration for sports. Indeed, FIFA invoked this provision to argue that the Dutch court had no jurisdiction to consider the dispute. The court did not agree with this argument. Indeed, intermediaries have no (direct) membership relationship with FIFA, in contrast to, for example, national associations, clubs, and players. Intermediaries are therefore only indirectly bound by the FIFA statutes and regulations. The arbitration clause in the statutes therefore does not apply to intermediaries. The arbitration provision in the agreements that intermediaries enter into with national football associations is too general to grant the CAS exclusive jurisdiction, the court finds.
The preliminary relief judge therefore does not consider it the right authority to rule on the FFAR in terms of content, also in view of the preliminary questions asked. The last word on the FFAR has therefore not been spoken yet. The CAS will also comment on the legality of the FFAR this summer. In these procedures, the FFAR will actually be tested in terms of content, or that is what is expected. The Dutch preliminary relief judge has, as usual, sidelined himself; the question remains whether other judges will follow suit. To be continued...
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Stef van der Veldt
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