SPAIN: An Introduction to Sport

The New FIFA Regulation on Agents; Legal Challenges and an Uncertain Future; The Spanish Case

The FFAR, previous controversy and international action after its publication

On 1 October 2023, the FIFA Council approved the FIFA Football Agents Regulations ("FFAR") which revoked and superseded the FIFA Regulations on Intermediary Relations.

According to FIFA, the aim was to strengthen contractual stability, protect the integrity of the transfer system and achieve more transparency in all financial matters, and to this end the regulations establish minimum service criteria between football agents and their clients.

Among other measures, the regulation imposes a mandatory licensing system, prohibits multiple representation to avoid conflicts of interest and applies a cap on commissions.

Part of the regulation (the licensing process) came into force on 9 January 2023, while the bulk of the provisions concerning the relationship to the activity of football agents, as well as the obligations of football agents and customers, came into force on 1 October 2023.

By express provision of art. 3.1. FFAR, its affiliated national federations had to transpose the FFAR into their internal regulations (applicable to domestic transfers) by 30 September 2023.

Even before its publication, the FFAR was widely criticised by the intermediaries (completely outside FIFA's control), who had to pass an examination, to obligatorily become agents and to develop their activity under FIFA's control.

They warned that the new rules could affect basic rights and freedoms protected by both EU and national legislation.

Even though FIFA defended the fact that it was a regulation agreed with all the interested parties, the professionals affected alleged that measures had been adopted that were absolutely burdensome for the performance of their work, such as a limitation in the fees to be received, in the way they were received or how the work could be carried out. This had led to clauses that not only clearly harmed their interests because they were contrary to what had become common, accepted, and basic practices in the sector, but also, as we have indicated, violated national and EU legislation.

As a result, the publication of the new FFAR led to the start of a series of complaints from agents, agency companies and associations before various bodies and jurisdictions, such that at the date of publication of this article, preliminary rulings have been submitted to the Court of Justice of the European Union on the grounds that certain provisions of the FFAR may be contrary to competition law. On the other hand, the application of the FFAR has been suspended in part, and the national Federation has been prohibited from transposing it as a provisional measure in Germany and, as we shall see, in Spain, and totally and indefinitely in England.

In addition, since there is a national law regulating the activity of agents, the FFAR is not applied, at least not in its entirety, in France or in Italy.

But the pronouncements have not been unequivocal since the CAS in an arbitration procedure initiated by the Professional Football Agents Association (PROFAA) against FIFA dismissed the claim that article 15 of the FFAR violated Swiss competition law, while the Commercial Court of the Netherlands Brussels as well as the Czech Republic Courts denied the interim measures that were requested by the claimants' agents and associations in terms quite similar to those in the German and Spanish case.

The situation in Spain 

In Spain, the Spanish Association of Football Players' Agents, together with 18 of the main football players' representation agencies joined together, co-led by Laffer Abogados, to file a claim with FIFA and its Spanish affiliate, the Royal Spanish Football Federation (RFEF), before the Commercial Jurisdiction, on the grounds that certain precepts of the FFAR altered or distorted free competition in the market for the provision of representation services, constituting an abusive act to the direct detriment of the agents (and most of them, to the sole and direct benefit of the clubs), and all this, without any objective justification whatsoever.

These provisions of the FFAR, the annulment of which was sought on the grounds that they were contrary to competition law, were those relating to: 

• The quantitative limitation on the fees that agents may receive (Articles 15.1 and 15.2).

• Mandatory determination of who is to be the debtor of the services of agents (Articles 14.2 and 14.10).

• Mandatory determination of the time of payment of agents' fees (Articles 14.6 and 14.8).

• Condition of the right to receive the agents' fees on the vicissitudes of the Player's employment contract (Article 14.2).

• The presumption that any amounts received in the two years before and after a transaction are received as "representation services" (Articles 15.3 and 15.4).

• The prohibition of multiple representation (Article 12.8 and 12.9).

• The obligation to submit commercially sensitive information relating to the activities of staff to the public (Articles 16 and 19).

As a consequence of the above, it was also requested that the RFEF be ordered to refrain from transposing the above-mentioned provisions of the FFAR into its own regulations and at national level.

As it was particularly burdensome and anti-competitive, and in order to prevent the pendency of the proceedings from causing irreparable damage, it was requested as an urgent precautionary measure to order FIFA to refrain from applying the articles relating to the limitation of fees as of 1 October 2023 (the date on which they were due to enter into force), thus maintaining the freedom between player and agent to set the latter's fees during the course of the proceedings, and to order the RFEF to refrain from transposing this limitation into its own regulations.

Finally, the claimants requested the Court to refer a question to the Court of Justice of the European Union ("CJEU") for a preliminary ruling on the compatibility of the abovementioned provisions of the FFAR with EU law. In summary, it was alleged that FIFA had acted contrary to art. 101/102 of the Treaty on the Functioning of the European Union (TFEU) and art. 1/2 of the Spanish Law on the Defence of Competition (LDC) as well as art. 56 TFEU.

After ruling on its own jurisdiction, called into question by FIFA, the Commercial Court number three of Madrid, by order of 2 November 2023, considering the danger of procedural default (periculum un mora) to be justified, states that, in principle and in an indirect manner, the limitation of fees of art. 15 FFAR would fall within the scope of prohibition established by arts. 101 TFUE and 1 LDC respectively, with the appearance of good law (fumus boni iuris), which is why it granted the injunction requested, suspending articles 15.1 and 15.2 of the FFAR and ordering its non-transposition.

What is the future for the FFAR? 

In view of the above-mentioned suspensions of the application of the FFAR, on Saturday December 30th, the FIFA Council Bureau approved the temporary worldwide suspension of the RFAF provisions affected by the German court injunction, until the Court of Justice of the European Union has given its final ruling on the pending proceedings concerning the FFAR.

In this regard, it recommends that all member federations also temporarily suspend the equivalent provisions of their national agents' regulations, unless they conflict with rules of a mandatory nature according to the law applicable in their territory.

The future of the FFAR is therefore in question, and there is once again an opportunity to negotiate the most problematic aspects of this regulation; it is also an interesting time for sports lawyers who need to advise their clients involved in representing footballers in times of uncertainty.