Professional Football Agents Association (PROFAA) v. Fédération Internationale de Football Association (FIFA)

At a glance

Parties

Professional Football Agents Association (PROFAA) v. Fédération Internationale de Football Association (FIFA)

Case no.

CAS 2023/O/9370

Forum and rules

Court of Arbitration for Sport, ordinary procedure (CAS Code); hearing in Lausanne

Treaty

None. Arbitration agreement concluded by exchange of letters and emails (18 October – 15 December 2022)

Tribunal

Romano F. Subiotto (President), Olivier Carrard, Luigi Fumagalli

Sector

Football agent services; sports governance

Outcome

All of PROFAA's claims dismissed (24 July 2023).

Amount

No damages claimed. PROFAA sought CHF 20,000 towards its legal fees. Under the parties' agreement, each side bears its own legal costs.

The dispute

PROFAA, a Swiss association of football agents, challenged the legality of the FIFA Football Agents Regulations (FFAR). The FIFA Council approved the FFAR on 16 December 2022. The parties agreed that CAS would review the FFAR under the FIFA Statutes and regulations, Swiss law and EU law before the rules came fully into force, and FIFA undertook to amend them if CAS found a breach. PROFAA attacked several provisions: the service fee caps (Article 15(2)), the reservation of agent services to licensed agents (Article 12(2)), the limits on dual and multiple representation (Articles 12(8)–(9)), and the publication of agent and transaction data (Article 19). It relied on Articles 101 and 102 TFEU, the EU Services Directive, Articles 7 and 16 CFREU, Article 8 ECHR, the GDPR, the Swiss Cartel Act, Article 28 of the Swiss Civil Code, Italian and French law, and the MLS–MLSPA collective bargaining agreement. FIFA argued that the rules pursue legitimate objectives under the Wouters/Meca-Medina framework, that it has a margin of appreciation, and that the Directive, the Charter and the ECHR do not bind it as a private party.

Key holdings

1. FIFA has technical and democratic legitimacy to regulate football agents. Agents engage directly in the market for players' employment and transfers, which is a core part of football, not a peripheral activity. ¶¶ 175–181
2. FIFA is an association of undertakings and the FFAR are a decision of that association under Article 101(1) TFEU. Following Piau, FIFA may be considered to hold a collective dominant position in the market for agent services. The Wouters/Meca-Medina framework applies to both Article 101 and Article 102 TFEU, and FIFA has a margin of appreciation. ¶¶ 198, 206, 217–226
3. The service fee cap in Article 15(2) is not a restriction by object, but it is liable to restrict competition by effect. It is nonetheless justified: it pursues legitimate objectives (the proper functioning of the transfer system, consumer protection, transparency, contractual stability), it is suitable, and it is proportionate. The related provisions, Articles 15(3)–(4) and 16(3)(d), are also proportionate. ¶¶ 238–257, 283–320
4. PROFAA did not prove unfair pricing or discrimination under Article 102(a) or (c) TFEU. The different caps reflect different reference figures, and small and medium-sized agents do not compete with large agents. Article 12(2) (only licensed agents may provide agent services) and Articles 12(8)–(9) (limits on multiple representation) are not abuses and would in any case be justified. ¶¶ 259–280, 332–370
5. The EU Services Directive has no horizontal direct effect and does not bind FIFA, a private Swiss association. Even if it applied, the harmonised cap would not restrict cross-border services, or would be justified. Article 16 CFREU is not mandatory and unconditional, so it does not bind FIFA. ¶¶ 380–393, 400–406
6. Article 8 ECHR does not apply to FIFA. Under the GDPR, the data processing under Article 19 is a priori lawful on the basis of legitimate interest (Article 6(1)(f)). However, publishing agents' gender and nationality, and disclosing fee details to other agents, does not appear necessary. The Panel invited FIFA to set out the disclosure framework in Article 19 itself. ¶¶ 415–419, 439–454
7. No infringement of the Swiss Cartel Act or of personality rights under Article 28 of the Civil Code was shown. No incompatibility was shown with Italian law, French law or the MLS–MLSPA CBA. All claims were dismissed. ¶¶ 460–514; operative part

Procedural history

1. 16 December 2022The FIFA Council approves the FFAR in Doha.
2. 18 October – 15 December 2022The parties agree by an exchange of letters and emails to submit the legality of the FFAR to CAS.
3. 19 December 2022PROFAA files its Request for Arbitration.
4. 6 March 2023The Panel is constituted.
5. 23–24 May 2023Oral hearing held in Lausanne.
6. 24 July 2023Award dismissing all of PROFAA's claims.

Tribunal, counsel and experts

Decided by

• Romano F. Subiotto President, CAS Panel — appointed by the institution
• Olivier Carrard Co-arbitrator, CAS Panel — appointed by the claimant
• Luigi Fumagalli Co-arbitrator, CAS Panel — appointed by the respondent

For the claimant

Juan de Dios Crespo Pérez · Agustín Amorós Martínez · Alexandre Zen-Ruffinen · Emilie Weible

For the respondent

FIFA · Victoria Wakefield · Matthew Kennedy · Donald Slater · Benoît Keane

Experts

Paul Rawnsley (respondent) · Stephen Weatherill (respondent) · Benoit Durand (respondent)

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Keywords

• FIFA Football Agents Regulations
• FFAR
• football agents
• service fee cap
• Article 101 TFEU
• Article 102 TFEU
• Wouters/Meca-Medina
• Piau
• collective dominance
• restriction by effect
• dual representation
• EU Services Directive
• Article 16 CFREU
• GDPR
• Article 8 ECHR
• Swiss Cartel Act
• Article 28 Swiss Civil Code
• margin of appreciation

Summary generated with AI from the published documents — refer to the award for the authoritative text.