ECJ clarification: New FIFA rules for player agents in focus!

ECJ clarification: New FIFA rules for player agents in focus!

On Thursday, ECJ Advocate General Nicholas Emiliou announced his opinions in two important cases (C-209/23 and others) that shed light on the applicability of the so-called “Meca Medina test” in the context of antitrust bans in football. These procedures raise the central question of whether the test is applicable to the competition rules of football associations, specifically for players' agents. In this context, it is crucial to understand the role of players' agents, who support players in their career planning and financial matters while receiving remuneration according to various models.

Regulation by football associations is intended to regulate the activities of players' agents, but these regulations have been criticized for their admissibility under antitrust law. The Meca-Medina test requires a differentiated assessment of the overall context and the objective of rules restricting competition, although it does not apply to intended restrictions on competition. An example of the problem is the proceedings before the Mainz regional court, where a players' agent is arguing against the effectiveness of new FIFA regulations. It is noteworthy that the court forwarded the applications for a declaratory judgment to the ECJ without first clarifying the antitrust issues.

Developments and challenges in football

The Federal Court of Justice (BGH) has submitted fundamental questions to the ECJ regarding the antitrust review of the DFB players' agent statute. The Dortmund regional court has already classified parts of the FIFA players' agent regulations as antitrust law without involving the ECJ. The establishment of a license for players' agents and requirements such as salary caps and a ban on triple representation received particular attention. The Dortmund Regional Court viewed the upper salary limit as an intended restriction of competition. Advocate General Emiliou, on the other hand, does not see the price mechanism as an obvious restriction of competition, but is clear about the ban on initiating contact and sees this as an unjustifiable restriction of competition.

At international and national levels, football associations try to regulate the activities of players' agents through specific rules. In this context, the case relates to the FIFA rules that were tightened on December 16, 2022, which introduced a cap on remuneration, which must now also be implemented by the DFB and other member associations. Many players' agents, especially in Germany, are resisting these new rules. Various proceedings are pending in connection with these regulations, including at the BGH, which deals with the old DFB regulations (RfSV). This raises questions about the application of the Meca Medina case law to the RfSV and the antitrust limits of the player agent regulations.

Legal tests and perspectives

The RfSV regulates the use of intermediary services by players and clubs. Provisions of the RfSV include, among other things, a registration requirement for intermediaries and a ban on commission when placing minors. In several decisions, for example by the Frankfurt a.M. Regional Court, parts of these regulations were found to be inadmissible. The BGH then suspended the proceedings and also referred questions to the ECJ for a preliminary ruling.

The perspectives of legal disputes are complex. It is expected that the ECJ will soon provide clarity on the restrictions on competition in the FIFA regulations. In addition, the Meca Medina case law could also be applicable to economic regulations. Sports associations are faced with the challenge of taking the interests of all affected actors into account when drawing up regulations in order to meet antitrust requirements. These legal issues have far-reaching effects on the way players' agents work and the entire football market.

For further information on the legal developments and the difficulties in dealing with the regulations of players' agents, please refer to the articles by Beck and Taylor Wessing referred.