Following extensive discussions and endless promises from FIFA that they will finally regulate the conduct of football agents in a proper manner, the world governing body rolled out a new regulatory framework called the FIFA Football Agent Regulations (FFAR) in 2023 which replaced the FIFA Regulations on Working with Intermediaries.
The FFAR were meant to come into full effect on October 1, 2023.
Despite the new FFAR allegedly falling in line with the European Union’s report on sports policy as well as the Council of Europe’s report on football governance, nonetheless the FFAR were met with various challenges to some of the provisions found within them from various football agents across the globe.
On May 24, 2023, the German Football Association (DFB) and FIFA were prohibited by the District Court of Dortmund from enforcing specific provisions within the FFAR following the granting of a preliminary injunction against them.
According to the German court, the preliminary injunction is to apply across the European Union and shall remain in force until such time as the Court of Justice of the European Union (CJEU) delivers its decision in the pending procedures concerning the FFAR.
FIFA has in the meantime filed an appeal against the preliminary injunction.
On November 6, 2023, the Commercial Court of Madrid enacted provisional measures against the FFAR according to which FIFA as well as the Spanish Football Federation (RFEF) have to refrain from implementing the cap on commission that is found under Article 15 of the FFAR.
Arbitration proceedings were also commenced by several football agencies to challenge the implementation of the FFAR by the English FA (The FA). The award delivered by the tribunal found that should The FA implement the service fee cap and the pro rata payment rules as provided under the FFAR on national level, these would be in breach of the Competition Act 1998. This prompted the FA to update its football agent regulations, which updates were published on New Year’s Eve!
In Switzerland, where FIFA has its statutory seat, the Swiss Football Agents Association (SFAA) filed a complaint against the FFAR to the Swiss Competition Commission (WeKo) in March 2023.
The WeKo has initiated a preliminary investigation to examine the impact of the FFAR on competition in Switzerland, a remarkable feat considering that WeKo does not usually call for an investigation to be carried out in many cases. The Court of Arbitration for Sport (CAS) has also opined on the matter, stating that the FFAR should be in compliance with Swiss and European competition law.
In Italy, despite the Italian Football Federation (FIGC) adopting the new Football Agent Regulations on October 16, 2023 in accordance with the FFAR, such regulations are currently postponed until other federations also implement the FFAR.
Following the immense pressure that FIFA found itself under as well as to avoid any unjust imbalances between different jurisdictions, FIFA informed its member associations on December 30, 2023, via circular 1873, that it has suspended with immediate effect the implementation of the FFAR worldwide until the CJEU delivers its decision.
This change in direction from FIFA, a mere 48 hours before the Europe winter transfer window opening, has caused quite a headache across the globe in relation to potential transfers occurring during the winter transfer window, with clubs, agents and players themselves attempting to figure out which system applies and what paperwork needs to be drawn up.
This latest development is part of a long-running battle between FIFA and the agent industry, where there have been constant legal challenges to FIFA’s attempts at reforming the agent industry.
The European Commission, in its written submissions to the CJEU, have argued that a cap is entirely justified in order to protect players and contractual stability, as well as limiting conflicts of interest while protecting players who lack experience or information about the transfer system.
In addition, the European Commission is of the view that agents’ fees are actually excessive when compared to other normal industry fees.
Whilst the European Commission’s submissions have been warmly received by FIFA, ultimately the world now eagerly awaits the ruling of the CJEU, with football agents in particular crossing their fingers and toes in the hope of emerging victorious against one of the world’s most powerful associations.
Note: Dr. Robert Dingli is a sports lawyer and Senior Associate at Dingli & Dingli Law Firm
