By Dr Estelle Ivanova, Attorney at Law, Paris, France
The regulation of football agents illustrates the growing interaction between the regulatory autonomy of sports governing bodies and the requirements of European Union (EU) law. In ROGON (C-428/23) and RRC Sports (C-209/23), the Court of Justice of the European Union (CJEU) has recently clarified the legal framework governing that relationship.
The two references arose from challenges to the compatibility with EU law of The FIFA Football Agent Regulations (FFAR) governing the activities of football agents.
Whilst ROGON concerned the application of Article 101 of the Treaty on the Functioning of the European Union (TFEU), RRC Sports raised broader questions under Articles 56, 101 and 102 TFEU, as well as Article 6 of the EU General Data Protection Regulation (GDPR).
Beyond the individual provisions in dispute, the cases required the CJEU to define the legal framework governing the regulation of football agents by sports governing bodies. In RRC Sports, the CJEU also recognised that the FFAR are capable of influencing both the market for football agent services and the multi-sided labour market for professional players and coaches. Against that background, it clarified the principles under which such regulatory measures must be assessed under EU law.
Following European Superleague, International Skating Union, Diarra and CD Tondela, these judgments further delineate the limits of the regulatory autonomy enjoyed by sports governing bodies when organising and regulating the economic activities that form part of the sporting ecosystem. Whilst the CJEU confirms that FIFA and national football associations enjoy genuine regulatory autonomy, it also reiterates that such autonomy remains fully subject to EU law, and, in particular, to the rules on EU competition law.
Although ROGON concerned regulations adopted by the German Football Association (DFB), rather than the FFAR themselves, the judgment establishes the analytical framework within which the compatibility of sports regulations affecting football agents with Article 101 TFEU must be assessed.
The principal contribution of the judgment is to confirm that the Wouters/Meca-Medina doctrine may apply even where a sports federation regulates the activities of third-party undertakings, such as football agents, which are not members of that federation. The fact that federation rules produce effects beyond the organisation's membership does not, in itself, prevent those rules from benefiting from the exception recognised by the CJEU case law.
The CJEU reaches that conclusion by reference to the organisation of professional football. Clubs, national associations, players and agents form an interconnected sporting ecosystem in which different categories of economic operators must interact in order to ensure the proper functioning and attractiveness of competitions. In such a context, regulating the activities of non-members may be necessary to pursue legitimate objectives relating to the organisation and integrity of the sport.
At the same time, the judgment makes clear that regulatory autonomy is not absolute. The application of the Wouters/Meca-Medina doctrine remains subject to strict conditions. The contested rules must not constitute restrictions of competition by object and must genuinely pursue legitimate objectives through measures that are appropriate, necessary and proportionate. Whether those conditions are satisfied remains a matter for the national court.
Whereas ROGON established the applicable analytical framework, RRC Sports applies it to the FFAR themselves, providing the referring German court with the legal criteria necessary to assess the compatibility of the contested provisions with Articles 101 and 102 TFEU, Article 56 TFEU and the GDPR.
As regards Article 101 TFEU, the CJEU adopts a nuanced approach. It accepts that several categories of rules, including those relating to licensing, remuneration caps and restrictions on multiple representation, are capable, in principle, of pursuing legitimate objectives connected with the organisation of football and the protection of players, coaches and clubs. Their compatibility with EU competition law, therefore, depends upon whether they satisfy the requirements of appropriateness, necessity and proportionality, a matter ultimately left to the national court.
However, the CJEU reaches a different conclusion regarding the rule preventing agents from approaching clients already bound by an exclusive representation agreement except during the final two months of that agreement. Because that restriction favours incumbent agents, who remain free to renegotiate existing mandates throughout the contractual relationship, it appears unlikely to satisfy those requirements.
The judgment also contains important guidance under Article 102 TFEU. Echoing its earlier case law concerning sports governing bodies, the CJEU accepts that FIFA may occupy a dominant position on both the market for football agent services connected with international transfers and the employment market for professional players and coaches. That position derives not only from the economic influence of FIFA but also from its regulatory, supervisory and disciplinary powers. Whether the contested rules constitute an abuse of that dominant position remains for the referring court to determine.
Beyond EU competition law, the CJEU also examines the FFAR under Article 56 TFEU. It considers that a number of provisions—including restrictions on multiple representation, certain licensing requirements and rules governing approaches to prospective clients—are capable of constituting obstacles to the freedom to provide services. Whether those restrictions are justified by legitimate objectives in the public interest and satisfy the principle of proportionality remains for the national court to determine.
Finally, the CJEU also addresses the compatibility of the FFAR with the GDPR. Whilst leaving the assessment of certain data-processing obligations to the national court, it makes clear that EU data protection law precludes the disclosure and publication of sanctions imposed on agents or their clients, as well as detailed information relating to intermediary transactions.
Taken together, ROGON and RRC Sports provide an important clarification of the legal framework governing the regulation of football agents under EU law. They reaffirm that the exercise of regulatory powers by sports governing bodies remains subject to EU competition law, the fundamental freedoms and, where relevant, data protection law.
At the same time, it should not be overlooked that both cases arose in the context of preliminary ruling proceedings. As is inherent in the procedure under Article 267 TFEU, the CJEU does not determine the outcome of the disputes before the national courts. Rather, it provides the interpretation of EU law, leaving it to the referring courts to assess the compatibility of the contested provisions with that framework, in particular as regards necessity and proportionality.
The practical application of those principles will, therefore, now rest with the national courts.
As further cases arise across the Member States, the guidance of the CJEU will continue to be developed through the preliminary ruling procedure. In that respect, ROGON and RRC Sports represent an important step in the continuing dialogue between the CJEU and the national courts on the regulation of sport within the EU.
Dr Estelle Ivanova may be contacted by e-mail at ‘