Legitimate Objectives in Antitrust Analysis: The FIFA Regulation of Agents and the Right to Regulate Football in Europe

Senior Consultant, Damien Neven recently authored a paper alongside Petros Mavroidis for Concurrences discussing FIFA’s regulation of the market for agents. The authors evaluate the consequences of recent judgments, assess FIFA Football Agent Regulation (FFAR) under the prism of competition law and review the case law on the legitimate objectives that have been put forward to ensure that measures that restrict competition fall outside the scope of Article 101 TFEU.

This article was originally published by Concurrences here (subscription required). The views expressed in this paper are the sole responsibility of the author and cannot be attributed to Compass Lexecon or any other parties.

Introductory remarks

FIFA introduced the FIFA Football Agent Regulation (FFAR) in December 2022. Football agents facilitate player transfers between clubs and provide other services to players. Mainly, the regulation restricts agents in three ways: licensing their entry into the market, limiting their conduct regarding services they provide, and capping the prices they can charge.

A challenge against the regulation’s compatibility with EU law has led to a request for a preliminary ruling before the Court of Justice of the European Union (CJEU). Rather than regulating the organization of football competitions, FFAR regulates the market for a service that football players and clubs use. The paper argues that the court is likely to be led to address whether FIFA has the authority to regulate these activities, as a consequence of recent judgments on the International Skating Union, the European Super League, and Royal Antwerp cases.

According to these recent judgments, If FFAR is a restriction by effect, FIFA can invoke a legitimate objective so it falls outside the scope of TFEU 101 (the so called “Wouters” approach), but cannot use Article 165 TFEU as it applies only to EU institutions. The question will thus arise of the objectives that FIFA can legitimately invoke with respect to regulation on market for agents.

The paper reviews prior judgments regarding legitimate objective and argue that in line with the circumstances found in prior cases, the CJEU should adopt an approach that only accepts public policy objectives explicitly entrusted to entities by a regulatory framework or delegation. According to the paper, this approach would impose discipline on the objectives that can be used to avoid Article 101 TFEU, and reduce the risk of overly restricting its scope without a clear organizing principle. For the FFAR, this means the CJEU must assess whether the objectives pursued by FIFA in the market for football agents’ services align with the regulatory role entrusted to it.

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