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Not Sporting Rules: FA’s FIFA-mandated cap on agents’ fees unlawful

15/12/23

A group of English football agencies has successfully challenged the Football Association’s planned implementation, in England, of FIFA’s Football Agents Regulations (the “FFAR”).

The FFAR establish a licensing system for football agents and regulate how agents provide services in connection with the registration and transfer of players and coaches with and between football clubs, including the imposition of a cap on the fees that agents can charge for those services (the “Fee Cap”).

The FFAR apply in relation to international transfers, and require all national football associations to adopt complementary regulations applicable to domestic transfers. The English Football Association (“FA”) adopted the National Football Agent Regulations (the “NFAR”) accordingly.

Four football agencies (including three of the world’s largest, and one smaller agency) brought an arbitral challenge, under the FA Rules, to the FA’s decision to implement the Fee Cap as well as three other provisions of the NFAR: the “Pro Rata Payment Rule”, the “Client Pays Rule”, and the “Multiple Representation Rule”. FIFA participated in the arbitration in support of the FA.

The Tribunal (Lord Collins of Mapesbury, Christopher Vajda KC and Lord Dyson) held that the Fee Cap operated as an anti-competitive horizontal purchasing agreement on the part of football clubs, and that, if implemented, both the Fee Cap and the Pro Rata Payment Rule would amount to restrictions of competition by object and effect, and abuses of the FA’s collectively dominant position on the market for players’ services. They would therefore breach the Chapter I and Chapter II prohibitions under the Competition Act 1998. In so holding, the Tribunal distinguished the conclusion reached by the Court of Arbitration for Sport (see here). Conversely, the Tribunal held that the Client Pays Rule and the Multiple Representation Rule did not breach the Chapter I and Chapter II prohibitions.

The consequence of the Tribunal’s ruling is that the Fee Cap and the Pro Rata Payment Rule in the NFAR cannot be adopted by the FA.

The Tribunal’s ruling is here.

Marie Demetriou KC, Max Schaefer and Sarah Bousfield acted for the Claimant sports agencies (CAA Base, Wasserman, Stellar and Areté), instructed by Clifford Chance LLP. Joshua Pemberton also acted for the Claimants in advance of the arbitration.

Tony Singla KC, Matthew Kennedy and Jacob Rabinowitz acted for FIFA, instructed by Ashurst LLP.