What happened?
On 15 May 2025, the Advocate General of the Court of Justice of the European Union (“CJEU”) delivered his opinions on three cases (Cases C-209/23, C-428/23 and C-133/24) regarding the request of preliminary ruling ex Art. 267 of the Treaty on the Functioning of the European Union (“TFEU”) concerning important issues on the autonomy of sports governing bodies and on the extent to which their regulations shall be compatible with certain EU laws. One of opinions directly affects rules included in the FIFA Football Agent Regulations (Case C-209/23, the “FFAR Case”).
What is a request for preliminary ruling ex art. 267 TFEU?
According to Art. 267 TFEU, a reference for a preliminary ruling allows the courts of the EU Member States, in disputes which have been brought before them, to refer questions to the CJEU about the interpretation of EU law being relevant in the case at hand. The CJEU does not decide the dispute itself, as it is the referring court’s responsibility to dispose the case in accordance with the CJEU decision, which it is similarly binding on other national courts before which a similar issue is raised.
In the main proceedings related to the FFAR Case, the applicants brought an action for an injunction before the Regional Court of Mainz seeking to bar the application of several FFAR rules (including the mandatory service fee cap, other rules on payment of the service fee, etc., the “Affected FFAR Rules”) on the ground that they infringe Article 56 TFEU (freedom to provide services), Articles 101 TFEU (prohibition on cartels) and 102 (prohibition on abuse of a dominant position) TFEU and Article 6 of the GDPR (the “EU Rules”).
Thus, the Regional Court of Mainz decided to stay the proceedings and to refer to the CJEU for a preliminary ruling to request whether such EU Rules must be interpreted as precluding the adoption by a world sporting association such as FIFA and whose rules are therefore binding in any event on the majority of the sports market players having the content as the Affected FFAR Rules.
What is an Advocate General Opinion?
Within the preliminary ruling proceedings before the CJEU, the EU Advocate General is asked to propose to the court a legal solution to a case in complete independence and which is not binding. Such opinion is brought to the judges of the CJEU and a judgment is usually delivered in a few months after such opinion is published.
Which is the legal solution proposed by the Advocate General Opinion in the FFAR Case?
The legal solution is the final part of the opinion, which also includes the analysis and the remarks on which such legal solution is founded. The FFAR Case opinion has a strong connection to the other two opinions issued as mentioned above, in particular the case C-428/23 which clarified the scope of applicability of the “Meca-Medina test” to sports agent regulations. In a nutshell, the “Meca-Medina test” (or three-stage test) is a case-law exception according to which, when applying the EU rules prohibiting cartel decisions (sports agents regulations are considered “decisions”), there might be an exception whether such cartel decisions (1) pursue legitimate objectives, (2) the related restrictive effects of competition are inherent in the pursuit of those objectives, and (3) they are proportionate to those objectives.
The Advocate General proposed that judges may answer the question referred for a preliminary ruling in the FFAR Case to the effect that rules set out in sports agents regulations are not precluded:
(1) by Article 101 TFEU, if any appreciable anticompetitive effect that those rules may produce can be justified under the Meca-Medina case-law or exempted under Article 101(3) TFEU;
(2) by Article 102 TFEU, if those rules genuinely pursue a legitimate objective and are necessary and proportionate to that objective, or the anticompetitive effects produced are counterbalanced or outweighed by advantages in terms of efficiency in the markets affected which also benefit the consumer;
(3) by Article 56 TFEU if those rules, where they entail a restriction on the freedom to provide services, are justified by a legitimate objective in the public interest which is other than of a purely economic nature and comply with the principle of proportionality, meaning that they are suitable for ensuring the achievement of that objective and do not go beyond what is necessary for that purpose; and
(4) by Article 6 GDPR, if those which concern the submission of personal data of natural persons and their disclosure to third parties genuinely pursue interests worthy of protection, only concern data that is strictly necessary to that end and do not place an intolerable burden on the data subjects as regards their right to privacy and their financial interests.
What have the reactions been so far to opinion to the FFAR Case?
Several statements have been released from the different points of view. FIFA released a statement welcoming such opinion: quoting “FIFA believes that the FFAR, which are the result of a long and inclusive consultation process, are fully justified and provide a transparent, reasonable and proportionate framework to help resolve systemic failures in the player transfer system and protect the stability of squads and the integrity of football competitions. FIFA is confident that the Court of Justice of the European Union will follow the key findings of today’s opinion.”
On the contrary, football agents’ representatives which have endorsed legal challenges against the FFAR have highlighted the contents of the opinion according to which several and critical assessments are yet to be made by the CJEU court and, in turn, by the referring court, regarding the actual compatibility of the FFAR with EU laws. Moreover, some football agents’ representative highlighted the non binding nature of the opinion and did not agree with FIFA’s statement welcoming such opinion, even considering it a “distortion” and responding that no proper consultation was made by FIFA in adopting the FFAR.
What are the next step and why are such preliminary ruling proceedings important for football agents?
Shortly after the adoption of the FFAR (16 December 2022), several legal proceedings have been brought by football agents’ representatives worldwide regarding concerning the validity of the FFAR. On 30 December 2023, FIFA issued circular no. 1873 approving the worldwide temporary suspension of the FFAR rules affected by the preliminary injunction issued by the Dortmund Court in Germany on 24 May 2023 until the CJEU renders a final decision in the pending procedures concerning the FFAR.
Even though, once the CJEU provides such decision, the referring court will dispose on the case according to the interpretation therein, it is very likely that FIFA will take next steps on the FFAR immediately after the delivery of the CJEU decision depending on its actual outcome.
