The FIFA Football Agent Regulations: Latest Developments

In June 2023, four agencies, CAA Base, Wasserman, Stellar and ARETÉ commenced FA Rule K arbitration proceedings to challenge The FA’s National Football Agent Regulations (the “NFAR”) which sought to implement the FFAR at national level in England.

On 30 November 2023, The FA Rule K Tribunal declared that if The FA implements the Fee Cap and the Pro Rata Payment Rules in the NFAR, it will be in breach of the Competition Act 1998.

Other key provisions, including in particular the general prohibition on multiple representation and the client pays principle, were unsuccessfully challenged by the agencies.

A partial final award has since been published.

The latest version of the NFAR subsequently came into force on 1 January 2024, containing highlights to the currently suspended articles of the FFAR, which are further described below.

The District Court of Dortmund

On 24 May 2023, the District Court of Dortmund issued a preliminary injunction which prevents the FFAR, and in particular the articles which provide for the fee cap, the client pays principle and the prohibition on dual representation, from coming into force in Germany until further notice.

Accordingly, FIFA issued a Circular on 30 December 2023 by which it confirmed that the implementation of the FFAR was suspended for “any transfer which has a link to the European Union”. To prevent a “situation of unequal legal standards within the international transfer system”, the Bureau of the FIFA Council further approved the worldwide temporary suspension of the FFAR articles affected by the injunction until the European Court of Justice (the “ECJ”) renders a final decision in the pending procedures concerning the FFAR.

While FIFA appealed the District Court of Dortmund’s injunction to the Regional Appeal Court of Düsseldorf, its appeal was dismissed. The injunction will therefore remain in place until the conclusion of the proceedings before the District Court of Dortmund.

The District Court of Mainz

On 31 March 2023, the District Court of Mainz referred the questions of whether the FFAR complies with EU competition law, Article 56 of the Treaty on the Functioning of the European Union (freedom to provide services) and Article 6 of the General Data Protection Regulation to the ECJ.

On 6 November 2023, the Commercial Court No. 3 of Madrid issued an interim injunction which prevents FIFA and the Spanish Football Federation from applying the fee cap introduced by Articles 15(1)-(2) of the FFAR.

In France, the FFAR have been partially implemented. However, the cap on agents’ fee remains 10% pursuant to Article L. 222-17 of the Code du Sport, rather than the stricter cap set out in the FFAR.

On 16 October 2023, the Italian Football Federation adopted new national agents regulations which implement the FFAR. Before coming into force, these regulations must be approved by the Italian Olympic Committee, as well as the Ministry for Sport and the Ministry for Labour. However, even if the new regulations are approved by those bodies, the Italian Football Federation has agreed that they will not come into force unless and until the FFAR are more widely implemented by other national federations. In the meantime, domestic regulations governing sports agent services continue to apply.

In March 2023, the Swiss Football Agents Association filed a complaint against the FFAR before the Swiss Competition Commission. The Commission dismissed a request for provisional measures. Nevertheless, the Swiss Competition Commission has initiated a preliminary investigation into the compatibility of the FFAR with Swiss competition law.

In addition, the FFAR have been challenged by the Professional Football Agents Association (“PROFAA”) before the Court of Arbitration for Sport (the “CAS”).

In its award dated 24 July 2023, the CAS dismissed PROFAA’s challenge and in doing so found, inter alia, that the FFAR are compliant with EU and Swiss competition law.

Morgan Sports Law’s Football Disputes team has published an article in Football Legal. which provides an in depth analysis of the CAS panel’s decision and looks ahead to the potential outcomes of the ongoing FFAR litigation elsewhere.

In the Netherlands, the European Football Agents Association and Pro Agent made a request for interim relief against the Dutch Football Association and FIFA in respect of the implementation of the FFAR in the Netherlands.

In May 2023, the District Court for the Central Region of the Netherlands rejected the agents’ request on the basis that the ECJ was already considering the compatibility of the FFAR with EU competition law after the referral from the District Court of Mainz.