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

Date01 January 2016
AuthorStephen Kirwan
Levelling the Playing Field?
Remuneration Caps, EU Competition Law and
Article 7(3) of the FIFA Regulations on Working
with Intermediaries
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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