The Hit and Miss case of CAS 2023/O/9370 Professional Football Agents Association (PROFAA) v. FIFA.

I want to start by saying that this is my opinion alone; it's how I see the situation, including the good, the bad, and what could have been done more effectively. This case, which deals with significant difficulties in the new FFAR regulations, could have been quite significant.

The first issue that caught my attention was the claimant's use of EU directives; this is as far as one can stretch it, and this, among other things in the claim e.g. ECHR, makes it appear that the claimant has nothing, thus trying to make as many small claims with different regulations as possible. Using the EU directivess was a huge miss, it lacks on the jurisprudence AND merits side. However, this goes both ways. when the panel dismissed the use of EU directives it should not have used the EU Commission’s Guidelines on Vertical Restraints in para. 240. Although it's not the same rules per se, they are just as relevant to each other and here the panel contradicts itself in that manner.

Then again, using ECHR law demonstrates that there is a lack of evidence; this is a common fallback if you lack sufficient evidence to support your claims, hence, FIFA is not a public authority as should be known.

The claim that the FFAR violates the GDPR is acknowledged, but it would not invalidate the regulations as a whole and does not have the same effect on agents as the commission cap does; therefore, I do not believe it is relevant to the case as it pertains to how we see the regulations evolve in light of the commission cap set by FIFA.

The Panel stated in para. 470 of the judgment that it recognizes that Articles 12 and 15 FFAR could potentially restrict agents’ freedom of action and be perceived as impeding their right to development and economic fulfillment, the Panel emphasizes that PROFAA has not adequately substantiated a manifest and serious violation of these rights.

How can it not be serious by obstructing the market in defense of powerful parties that this does not affect? This is beyond me and many others I believe.

Notably, the FFAR does not fall under the so-called sporting exception. Rather, the FFAR regulates an economic activity involving providing services that are an accessory to the sport.?

FIFA states in its rejoinder that [Article 15(2) FFAR pursues objectives that cannot be achieved by less restrictive means, because (i)(a) a recommended cap, as under the 2008 Players’ Agents Regulations and included in the 2015 Regulations on Working with Intermediaries, had simply been ignored...] This is actually part of the problem, as FIFA designated those regulations as "guidelines" rather than mandatory rules, and stating that they were disregarded here is not, de facto, a violation. It also demonstrates the need for FIFA to reconsider its rules, as the numbers should not be reduced to the rock bottom.?

FIFA does not act on behalf of national associations or clubs, but it does set rules that restrict the movement of these clubs that must be followed by these clubs and associations, so in a theoretical sense it does act on their behalf in these transactions.

The Panel also notes that the activity of agents cannot be properly defined as being only “peripheral” to the world of football and its organization. Agents, in fact, as far as they represent the interests of clubs and players, directly engage in the organization and functioning of the market of players’ services, with respect to their employment and transfer – i.e., with respect to one of the core aspects of the entire football system. As a result, FIFA appears to be entitled, in general terms, to adopt rules governing the activity of agents, in the same way as (and to the extent in which) it is entitled to issue regulations concerning the status and transfer of players.

I have to disagree with this because Agents operate as independent businesses and compete with each other for clients. Imposing uniform regulations on agents could restrict competition and limit players' choices when selecting representation, potentially leading to anti-competitive outcomes. FIFA's entitlement to regulate players' status and transfers is grounded in its role as the global governing body of football, responsible for overseeing the sport's integrity and competitions. However, the roles and responsibilities of football agents are fundamentally different from those of players. Agents are private individuals operating in a commercial capacity, representing the interests of players and clubs through contractual negotiations. Their role primarily revolves around providing a service, which is distinct from the fundamental aspects of the football system, such as player eligibility, competition rules, and sporting integrity, that FIFA typically regulates.

This part was of particular interest to me: The Panel notes that FIFA submitted its own economic report allegedly indicating that 80% of football agents achieved a profit before tax and that out of the bottom third of the list of agents the expert audited, 20 of the 30 football agent companies with the lowest revenues based on the latest revenues, over 50% have a profit margin over 10% and only 25% are loss-making (Report of Paul Rawnsley, FIFA Answer to the Statement of Claims, Annex ER-3, paras. 3.4 and 5.27). This is with the 10% fee, and I don't see the purpose of the panel's argument, as the new regulations will demonstrate that more than the bottom 25% will lose more, and 25% is already a high number. The claimant did not even rebut these findings and even explicitly rejected the Panel’s invitation to cross-examine the author of FIFA’s economic report, Mr. Paul Rawnsley, that attended the Oral Hearing as an expert for FIFA. This is beyond me

Fundamental Errors such as those below are the cornerstone of this case's loss.

PROFAA submits that Article 14 FFAR imposing a service fee cap constitutes a restriction “by object” and “by effect” that infringes Article 101 TFEU. PROFAA however errs in referring to Article 14 FFAR as imposing the contested service fee cap. Article 14 FFAR merely establishes the general principles governing service fees. Article 15(2) FFAR imposes the contested service fee cap. Despite PROFAA’s error, the Panel will review the compatibility of Article 15(2) FFAR and associated Articles 15(3)-(4) FFAR, with Article 101 TFEU.

This can not happen at this stage.

This case appears to have been completed in a hurried manner without supervision, with the claimant's scant evidence serving as the case's foundation. Too many claims lacked supporting evidence.

Conclusion

National courts will be hesitant to use any of the claimant's jurisprudence; instead, they will be more interested in citing CAS panel language. In my opinion, this case could have been handled more methodically because it would have set a significant precedent for the future, despite the fact that it comes from CAS.

It would be an understatement to claim that FIFA does not represent the organization. FIFA establishes regulations that impose restrictions on the undertakings, the undertakings are obligated to implement those regulations, and the undertakings of the undertakings must also comply. This may be referred to as indirect management, as their actions on behalf of the enterprise are undoubtedly indirect.

In my humble opinion, FIFA disregarded the fact that not all agents are like the top 0.1% who receive the most attention and sums of money we can't even fathom. The majority of agents have a regular salary and work day in and day out to provide for their families. Then, I ponder how FIFA can even regulate third parties that are entirely independent of FIFA and have nothing to do with FIFA's primary mission, which has nothing to do with agents. This is yet another endeavor to attain control and authority.

I also believe that the agent's exam is another method for FIFA to manipulate the market and profit from a market that is not part of FIFA's work cycle. Agents should be lawyers so that clients are not harmed, as lawyers have studied and devoted their lives to understanding the law, contracts, etc. It's also a good thing to have an exam for lawyers on football Law but that should be free of charge, as FIFA should not make a profit from third parties and it would be in the interest of football as a whole.