Author: David Winter 🇫🇷
Lawyer representing athletes

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Published and translated by the firm Winter – Dávila & Associés
Paris, 5 December 2023                                                                 

As is well known, on October 1, 2023, the new FIFA (Fédération Internationale de Football Association) Regulations on Football Agents came into full force and effect, which introduced several regulatory changes, the most important of which are as follows:

  • The limitation of the fees that agents can receive (3%, 5%, 6% and 10% maximum) in a transfer of a soccer player (Articles 15.1 and 15.2).

As was to be expected, the aforementioned regulation was received with much criticism from soccer agents and even from the beginning, it was mentioned in several forums specialized in Sports Law, that the commission cap established was contrary to European legislation and to the national legislation of many States.

What have been the pronouncements of the European courts against FIFA?

Although there is not a pronouncement in all the States that make up the European Union, we have three decisions at the date of writing of this article, so we will go from the most recent to the oldest.

YOU CAN ALSO READ: Regulation of the FIFA Agents in the European Union competition law.

England

While it is true that officially the United Kingdom is out of the European Union, since January 31, 2020, it is also true that the four (4) federations (England, Scotland, Wales and Northern Ireland) belonging to this State are still members of UEFA (Union of European Football Associations). In that sense, for the practical purposes of this article, we will consider England as part of Europe or in any case of UEFA.

That said, the most recent pronouncement against FIFA’s Regulations on Football Agents was made in England on November 30, 2023.

In fact, last June, a group of the main English agencies filed a claim before an English Football Association Arbitration Tribunal, which ruled that the limit on soccer agents’ commissions is illegal, since it violates its Competition Act of 1998.

In this sense, the lawsuit filed by the main English agencies is a new blow to FIFA, taking into account the preponderance of English soccer.

Spain

Similarly, on November 2, 2023, a Commercial Court of Madrid ordered FIFA and the RFEF (Royal Spanish Football Federation) to refrain from applying articles 15.1 and 15.2 of the new Regulations, i.e. those referring to the capping of commissions, for being contrary to the Treaty on the Functioning of the European Union (TFEU) and the Spanish Antitrust Law (LDC).

It should be noted that in this case, the lawsuit was also brought by the most important agencies in Spain.

Photo: pexels.com

Germany

Finally, the first ruling against the application of FIFA’s Regulations on Football Agents was made in Germany on May 24, 2023.

Indeed, the Regional Court of Dortmund prohibited FIFA and the GFA (German Football Association) from applying any limitation on the fees of soccer agents.

According to the aforementioned Court, the limitation of fees imposes on agents the obligation to behave in a uniform manner when negotiating, which means anti-competitive price fixing and restricts the individual economic freedom of the market.

The particular case of France

In France, the laws and regulations, which prevail over FIFA regulations, provide that the activity of sports agent can only be exercised in France, by a person holding a sports agent license issued by the French Football Federation (FFF), after passing an examination under the conditions defined in articles R.222-14 et seq. of the French Sport Code. Therefore, the new FIFA Regulations on Football Agents do not apply in France.

However, it should be noted that the French Football Agents Regulation itself, in article 6.2.2.2, establishes a limit on the fees that an agent may receive, which is set at 10% (maximum) of the player’s remuneration.

What have been the pronouncements in favor of FIFA?

Court of Arbitration for Sport (CAS)

The best known and most publicized was the award, dated July 24, 2023, issued by the Court of Arbitration for Sport in Lausanne, Switzerland, which pitted the Professional Football Agents Association (PROFAA) against FIFA.

In the aforementioned arbitral award, CAS confirmed the legality and validity of FIFA’s Regulations on Football Agents.

Furthermore, according to FIFA’s website, the Courts of Belgium, Czech Republic, Netherlands and Switzerland have also confirmed the legality of the Regulations.

YOU CAN ALSO READ: The New FIFA Regulations for Football Agents

Conclusion

Considering that there are contradictory pronouncements on the application of FIFA’s Regulations on Football Agents, it is not possible to conclude decisively whether it is legal or illegal.

However, it is clear that FIFA has lost legal battles in 4 (England, Spain, Germany and France) of the 5 most important leagues in the world (Italy alone is missing).

In this sense, the highest body of world soccer will have to determine whether to reverse this initiative, modifying the Regulations on Football Agents or, on the contrary, to persist with the current one.

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