Levelling the Playing Field? Remuneration Caps, EU Competition Law and Article 7(3) of the FIFA Regulations on Working with Intermediaries

• Date: 01 January 2016
• Author: Stephen Kirwan

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Levelling the Playing Field?

Remuneration Caps, EU Competition Law and

Article 7(3) of the FIFA Regulations on Working

with Intermediaries

STEPHEN KIRWAN

Since the European Court of Justice’s 1974 judgment in Walrave v Union Cycliste

Internationale it has been accepted that EU law can, in certain circumstances, be

used to challenge rules and decisions made in relation to sport which concern

economic activity.1 e scope of the approach of the Commisson and the Court of

Justice towards such issues has been recently conrmed by the EU Commissioner

for Competition Margrethe Vestager who noted:

[f ]or many, sport is a passion—but it can also be a business. We recognise and

respect the role of international sports federations to set the rules of the game

and to ensure proper governance of sport … . However … we will investigate

if such rules are being abused to enforce a monopoly over the organisation of

sporting events or otherwise restrict competition.2

In the mid-1990s, due to the growing commercialisation of professional sport,

there emerged a need to address competition issues such as ticketing arrangements

and the sale of media rights through competition law rules.3 Despite that, it was not

until December 2009 that the EU acquired direct and independent competence

in the eld of sport under Article 165 of the Treaty of the Functioning of the

European Union.4

is area has received a recent re-invigoration with relevant actors seeking to

challenge the unfettered regulatory power of both Union of European Football

Associations [hereinaer UEFA ] at a regional level and ultimately the Fédération

1 Walrave v Union Cycliste Internationale (36/74) [1974] E.C.R. 1405 [hereinaer Walrave]; Erika

Szyszczak “Competition and Sport” (2007) 32(1) European Law Review 95

2 European Commission, “Commission Opens Formal Investigation Into International Skating

Union’s Eligibility Rules” http://europa.eu/rapid/press-release_IP-15-5771_en.html [Accessed 28

January 2015]

3 See Ben Van Rompuy, “Editorial Competition Law In Leisure Markets” (2015) 11(1) e

Competition Law Review 1; Walrave v Union Cycliste Internationale (36/74) [1974] E.C.R. 1405;

Donà v Mantero (13/76) [1976] E.C.R. 1333; URBSFA v Bosman (Case C-415/93) [1995]

E.C.R. I-4921; Deliége v Ligue Francophone de Judo et Disciplines Associées (Case C-191/97) [2000]

E.C.R. I-2549 41; and Meca-Medina & Majcen v Commission of the European Communities (Case

C-519/04) [2006] E.C.R. I-6991[hereinaer Meca-Medina]

4 Treaty on the Functioning of the European Union, art. 165 [hereinaer TFEU]

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44  

Internationale de Football Association [hereinaer FIFA] at a global one. ese

“regulatory challenges” include for example, a recent challenge to the nancial

regulation of football clubs under UEFA’s Club Licensing and Financial Fair Play

Regulations [hereinaer FFP],5 and another purported challenge to the legality

of the transfer market restraints under the FIFA Regulations on the Status and

Transfer of Players.6

is article intends to focus on the latest of these emerging regulatory challenges,

namely the implementation of FIFA’s Regulations on Working with Intermediaries

[hereinaer the Intermediary Regulations] which were introduced on 1 April

2015. Some commentators have noted that the changes brought about by the

Intermediary Regulations represent the most comprehensive transformation in the

regulation of player and club representation in the history of professional football.7

FIFA have justied their creation in order:

to promote and safeguard considerably high ethical standards in the relations

between clubs, players and third parties and [to prevent] … unethical and/or

illegal practices and circumstances in the context of concluding employment

contracts between players and clubs.8

It has been argued by Mel Stein of the Association of Football Agents in England

that instead of promoting high standards amongst player representatives, the

Intermediary Regulations completely fail to protect vulnerable players against

exploitation from underqualied individuals holding themselves out as having an

expertise in player representation.9

Notwithstanding the above aspect to the debate, this article will focus will be on

Article 7 of the Intermediary Regulations. More precisely it will examine Article

7(3) which seeks to impose a recommended remuneration cap on all purported

activities by players’ representatives in contract negotiations. In particular, it

will question whether Article 7(3) of the Intermediary Regulations breaches

EU competition law rules by constituting an illegal price-xing decision by an

association of undertakings for the purposes of Article 101(1) TFEU.

5 “European Commission Defers Striani Complaint to Brussels Court” (2014) 12(5) World Sports

Law Report http://e-comlaw.com/world-sports-law-report/article_template.asp?Contents=Yes&om

=wslr&ID=1663 [Accessed 18 March 2016]

6 World Players Union (FifPro), EU Competition Law Complaint Executive Summary http://

ec.europa.eu/sport/library/documents/cons-study-transfers-nal-rpt.pdf [Accessed 18 March 2016]

7 John Mazhard, “Player Contracts: FIFA Regulations on Working With Intermediaries: Analysis”

(2014) 12(11) World Sports Law Report http://www.littletonchambers.com/lib/articles%20pdf/

jmz%20player%20contracts%20-%20jan%202015.pdf [Accessed 19 March 2016]

8 FIFA, Regulations on Working with Intermediaries http://www.f.ro/public/images/uploads/les/

regulationsonworkingwithintermediaries_neutral(1).pdf [Accessed 18 Januray 2016]

9 James Riach, “Football Agents Fear ‘Wild West’ as Fifa Reforms Seek to Cap Fees” e Guardian

31 March 2015 http://www.theguardian.com/football/2015/mar/31/football-agents-fa-reforms

[Accessed 18 January 2016]

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