Background
On the 16th of December 2022, the FIFA Council introduced and approved the FIFA Football Agent Regulations (FFAR) due to become effective as of 1st October 2023. You can read our detailed assessment of these regulations, and their prospective impact on the footballing world, in one of our previous articles here. In short, the new FFAR were met with high levels of criticism from agents, commencing legal challenges in various jurisdictions across the European continent. These legal challenges included proceedings in the Court of Arbitration for Sport (CAS), as well as various domestic courts in the Czech Republic, Germany, the Netherlands and Spain. Amongst these entities, were the European Football Agents Association (EFFA) and Pro Agent who sought an injunction against the new regulations. As a result, the implementation of FFAR has been suspended in whole or part in a number of jurisdictions, most notable in Germany, Italy, France and England.
The Response in Various Markets
It is important to note that the implementation of FFAR has not suffered a blanket ban. In fact, outside of the jurisdictions specified below, FFAR has been implemented as of 1 October 2023 in a range of other countries, whilst in others, it has been limited in how far it can affect and govern footballing transactions.
Germany
FIFA were precluded from implementing some of the provisions of the FFAR in Germany, after the Regional Court of Dortmund issued an injunction against the body. The injunction itself referenced various provisions of the FFAR, including the restriction of multiple representation, as well as the limits placed on the commissions of agents. Prior to this, the Mainz Regional Court also made a referral for preliminary ruling to the European Court of Justice (ECJ).
FFAR has been suspended in its entirety as a result of the injunction in favour of the European Football Agents Association. This extends to all transactions with a 'link to the German Market', including the transfers of players to and from the recognised German Leagues, such as the Bundesliga. In addition, this also means that there is no obligation on the German Football Association to implement FFAR nationally. Therefore, the existing national football regulations will continue for an indefinite period of time.
Italy
The domestic laws in place will continue to govern sports activity, including the behaviour and involvement of agents in transactions. FFAR has been implemented, but not in full. Certain provisions of the FFAR have been ignored and will not be implemented, for example the requirement to alleviate multiple representation.
France
FFAR has also been implemented in France, however like Italy, its provisions have been limited in scope. Within this jurisdiction, the cap on agent's commission will continue to be governed by the existing national laws, which currently sits at 10%.
England
Various agencies brought arbitration proceedings against the Football Association (FA), the decision of which is expected by the end 2023. The FA sought to implement FFAR by way of the National Football Agent Regulations (NFAR) relating to English domestic transfers. However, this has now been delayed pending the result of the aforementioned arbitration. Until then, the existing FA Regulations will continue to govern transactions within England.
Switzerland
The CAS in Switzerland dismissed the proceedings brought by the Professional Football Agents Association. These proceedings were brought on the bases that the rules breached Swiss Law, with the CAS disagreeing with this stance and declaring the rules as 'reasonable and proportionate'. This was, amongst a series of setbacks, a notable win for FIFA.
The Netherlands
Similarly in the Netherlands, the domestic courts dismissed appeals by various agency bodies. The Central Netherlands Court rejected a claim for an injunction, deciding rather to wait for the ECJ ruling referred to in Germany.
Potential Impact in England
There is a considerable level of uncertainty regarding FFAR in general, irrespective of its implementation. Should the agencies that have commenced legal proceedings and challenges be successful, it may be the case that the FA could suspend the FFAR in England, just like in Germany. Furthermore, the FA's domestic version of amended NFAR have not been published and it is not entirely clear how these transactions can be expected to be compliant with FFAR.
Finally, the result of any decisions by the various courts in these jurisdictions may fall in favour of the agencies, meaning that FIFA's implementation of these rules will be denied in their entirety. A potential ripple effect could see the rise of consortiums and investors looking to the European Super League once more, as agents, players, various leagues and teams could lose faith in FIFA as a governing body.
Conclusion
With various rulings pending and others handed down in favour of either agents or FIFA, the position has never been more uncertain. There remains significant confusion across multiple jurisdictions. While it seems likely that FFAR will eventually be tweaked and implemented on an international scale, the current picture is that domestic regulations will in many cases continue to govern footballing transactions, as well as the behaviour and remuneration of agents. The next major development to look out for will be the Tribunal's Award to ascertain what position England will take in implementing FFAR, which is anticipated in the next month.
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