On 30 December 2023, FIFA decided to suspend partially the new FIFA Football Agent Regulations (FFAR) which came into force a few months ago on 1 October 2023.
Since their adoption, the FFAR have been under multiple legal attacks by agents and agents’ associations in various jurisdictions. The key disputed elements of FFAR concern the service fee cap imposed on the agents, its timing and payment process, and the prohibition of double representation.
FIFA successfully defended the FFAR in most legal proceedings, including the one initiated by the Professional Football Agents Association at the Court of Arbitration for Sport, which held, in its arbitral award (2023/O/9370), among others, that although the FFAR restrict competition at the EU level under Section 101 of the Treaty on the Functioning of the European Union (TFEU) and may be considered to amount to an abuse of dominance under Section 102 of the TFEU, they pursue legitimate objectives as per the EU legal order and CJCE case-law (Wouters/Meca-Medina framework), that it is appropriate to pursue such objectives, and they are proportionate.
However, this was not the case in all legal proceedings, and, even worse for FIFA, the claims succeeded in some of the key (in terms of the business of agents) jurisdictions in which agents operate, i.e., in England, Germany, and Spain.
In a series of decisions, starting with the preliminary injunction of the District Court of Dortmund issued on 24 May 2023 which requested FIFA to suspend certain provisions of the FFAR, including the one related to the service fee cap and prohibition of double representation, followed by the interim injunction issued on 6 November 2023 by Commercial Court No. 3 in Madrid ordering the Royal Spanish Football Federation to refrain from incorporating the service fee cap into its internal regulations, and ending with the award issued by the Arbitration Tribunal operating under FA rules on 30 November 2023 that the implementation of the service fee cap and pro rata payment rules in national football agent regulations by the FA will be in breach of the UK Competition Act 1998.
Now, FIFA has opted to suspend the most controversial parts of the FFAR, and this ahead of the winter transfer windows which started in some of jurisdictions already on January 1, 2024. Although the above successful challenges of the FFAR are based on EU competition rules, FIFA has made the suspension global to ensure a level playing field and avoid problems with international transfers to or from the EU.
FIFA declares that it has taken steps to challenge the injunction in Germany, with a verdict expected in early 2024, and until the CJEU renders a final decision in the pending procedures concerning the FFAR.
