Football agents (PROFAA) v FIFA – CAS’s biggest EU competition law decision yet?

On 24 July 2023, the Court of Arbitration for Sport (“CAS”) issued its decision in the dispute between the Professional Football Agents Association (“PROFAA”) and FIFA in relation to the legality of the new FIFA Football Agents Regulations (“FFAR”).

PROFAA principally argued that the FFAR infringed a wide range of national and EU laws. This included breaches of:

• Swiss competition law concerning restrictive agreements and abuses of dominance under the Swiss Cartel Act, and personality rights (particularly their right to development and economic fulfilment in professional sport) under the Swiss Civil Code.
• Breaches of Italian law, in particular that the Football Agents Regulation of 2020 and the rules therein take precedence over the FFAR.
• Breaches of French law, namely the French Sports Code and Regulation of Sports Agents and the rules therein take precedence over the FFAR.
• Breaches of the Major League Soccer collective bargaining agreement insofar as the FFAR impose limitations and caps affecting player benefits that are precluded by that agreement.
• breaches of EU law, including:
  1. EU competition law, concerning restrictive agreements and abuses of dominance under the Treaty on the Functioning of the European Union.
  2. The Charter of Fundamental Rights of the EU, as relates to the fundamental rights of agents to freedom of economic activity and freedom of contract.
  3. The EU Services Directive, as concerns the freedom of agents to determine their own prices and provide their services on their own terms and conditions.
  4. The EU General Data Protection Regulation, in relation to the right to privacy and protection of business secrets insofar as the FFAR allows FIFA to disclose the name of agents’ clients and the amounts paid by clients to agents.
• The European Convention for the Protection of Human Rights and Fundamental Freedoms, also as relates to the right to privacy of agents.

Whereas PROFAA’s claims were dismissed in their entirety, with the CAS panel providing a reasoned decision for doing as relates to each of PROFAA’s claims, for the purposes of the present article, only the challenge against Articles FFAR Articles 12(2), 12(8-9), 15(2), 15(3-4), and 16(3)(d) under EU competition law, and CAS’s findings in respect of the same, will be examined as these form the core of the EU competition law analysis undertaken by the CAS panel in this case.

This article covers:

• The FFAR
• FIFA’s legitimacy to regulate football agent services
• FFAR’s compliance with EU competition law
  • Compatibility of FFAR Article 15(2), and associated Articles 15(3)-(4) and 16(3)(d)
  • Compatibility of FFAR Articles 15(3)-(4) and 16(3)(d)
  • Compatibility of FFAR Articles 12(2) and 12(8)-(9)
• Benefits of CAS in a competition law dispute
  • Time and costs
  • Certainty of scope of proceedings
• Limitations of CAS in a competition law dispute
  • Lack of data
  • Concurrent proceedings across jurisdictions