Netherlands: Playing by the rules: another development in EU sports and competition

The District Court for the central region of the Netherlands (Rechtbank Midden-Nederland) rejected a request for interim relief by the European Football Agents association and Pro Agent, both associations of football agents, against the KNVB (Dutch national football association) and FIFA. This interim relief procedure was initiated to stop FIFA from implementing the new FIFA Football Agent Regulations (“FFAR”). The court rejected this request.

Court ruling

Under the FFAR, the service fees that agents can receive are capped at 3% of a player’s salary (above USD 200,000) at a new club and 10% of the total transfer. In addition, the new rules stipulate that a football agent needs to pass an exam in order to obtain a licence for representation, and they can represent only one party in a transaction, unless clients on both sides of a transfer explicitly consent to dual representation. The requirement for agents to obtain a licence has been in place since 9 January 2023, and the remaining requirements and obligations of the FFAR relating to the conduct of agents will come into force on 1 October 2023.

Both the European Football Agents association and Pro Agent argue that the FFAR are anti-competitive for several reasons. Firstly, FIFA does not have a basis to regulate the profession of football agents, as football agents are not (indirectly) members of FIFA, nor is there any public law (legal) basis for FIFA's regulation of the profession. Secondly, the provisions relating to the service fee cap supposedly infringe national and European competition law, and more specifically, the prohibition on cartels and the prohibition on abusing a dominant economic position.

The District Court found itself competent because KNVB is the anchor defendant based in the Netherlands, the claims are closely connected (Art. 6(1) EVEX II) and it was foreseeable for the defendants that FIFA could be summoned, with the KNVB as co-defendant, before a court in the Netherlands. The interim judge of the Court however dismissed the request for interim relief by the football agents, on that basis that the CJEU is currently already considering similar questions in a case referred to it by Landgericht Mainz in Germany.

This case, which was brought against FIFA by Roger Wittmann, a well-known German football agent, relates to the compliance of the ‘service fee cap’ and the examination procedure in the FFAR with competition rules and freedom of services legislation. Landgericht Mainz suspended the claim in April 2023, pending conclusion of the CJEU preliminary proceedings (C-209/23).

In view of these pending preliminary proceedings brought about by the referrals of the Landgericht Mainz, the Dutch interim judge in this case notes that the parties should await the outcome of the proceedings at the CJEU before ruling itself, given the worldwide application of the FFAR to football agents.

Contrary to the ruling in the Netherlands, a similar proceeding have been brought by two football agents at the Landgericht Dortmund against the German Football Association. Despite the referral to the CJEU, the Landgericht Dortmund has ruled that the German Football Association cannot enforce the FFAR in Germany. The court considered in its ruling the length of time it will take for the CJEU to hear the case, and the economic interests at stake while waiting for a ruling of the CJEU.

Conclusion

These cases are interesting, because the same issues relating to football agents are at issue in different jurisdictions but also because it is yet another case dealing with the interaction between the rules of sports governing bodies and competition law. In addition to the already mentioned Wittman-case relating the FFAR, the CJEU is currently examining whether the rules of sports governing bodies are permissible under competition law in the following cases:

- The appeal of International Skating Union (C-124/21 P) ;
- The establishment of the European Super League championship in a request for a preliminary ruling (C-333/21); and
- The rules of UEFA regarding the so-called home-grown players in a request for a preliminary ruling (Case C‑680/21).

For more information, please contact Pauline Kuipers and Reshmi Rampersad.

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