Would FIFA’s newly proposed agents’ regulations comply with German & EU law?

On 24 October 2019, the FIFA Council held in Shanghai, China, endorsed a series of measures[1] proposed by the FIFA Football Stakeholders Committee[2] that will affect the business of agents in professional football once they are implemented. These measures, mainly developed by FIFA’s Task Force Transfer System, include caps on agents’ commissions and limitations to the options of multiple representation by agents to avoid conflicts of interest. FIFA’s measures are aimed at protecting the “integrity of the system and preventing abuses”[3]. These “Phase 2” reforms come on top of several proposals already endorsed last year (“Phase 1”).

While agents argue that imposing a cap on their commissions will reduce their ability to exercise their business freely and are threatening to take legal action against the proposed reforms[4], clubs hope to reduce their spending on fees if agents’ commissions are capped. Players however fear that they will be the ones to pick up the tab and must effectively make good their agents for services rendered from their net income, for example by paying them an additional fee as a one-off payment.

The stage is set for heavy debates in the months to come. Considering these events, this article examines the following points:

• What is the status quo of agent regulation and what are the key changes that will affect agents soon?
• How will the measures (likely) be implemented in Germany?
• Will the proposed changes be in conformity with German and European competition law, paying special attention to earlier regulation and the interpretation of Art. 101 and 102 of the Treaty on the Functioning of the European Union in the infamous “Pechstein” decision of the Federal Supreme Court of Justice?
• What legal recourse is there for agents, if any, to challenge FIFA’s proposed reforms under German law?