The service fee cap as well as other regulations regarding payment, the prohibition of doble representation, reporting and disclosure obligations or the mandatory submission to FIFA’s jurisdiction were criticised by a multitude of stakeholders and challenged in court.
In the end, it was a preliminary injunction, issued by the District Court of Dortmund (Germany) on 24 May 2023 which, at least temporarily, overturned the FFAR. The injunction obliges FIFA to suspend several provisions of the FFAR, directly impacting transfers in Germany and the EU, as well as on the work and remuneration of the agents involved. Even though the decision is not final, FIFA was obliged to implement the injunction, ordering the temporary suspension of any transfer linked to Europe. In order to avoid creating unequal legal situations within the FIFA system between Europe and the rest of the world, FIFA has decided to extend the suspensions to all transfers, worldwide. However, FIFA does not declare the suspension of the entire FFAR, but only of the provisions affected by the above-mentioned injunction of the District Court of Dortmund. Hence, in general, other provisions of the FFAR, such as the obligation for clubs and players to contract only with FIFA-licensed agents, remain in force.
Although the FIFA Circular indicates that the Court of Arbitration for Sport (CAS), among others, has upheld the compatibility of the FFAR with national and international regulations in the past, the decision has undoubtedly increased uncertainty within the industry, and certainly within FIFA itself. The compatibility of certain provisions, such as the fee cap, with national and EU competition laws is at least doubtful, and the litmus test will be the still pending ruling of the CJEU. There is no certainty as to the proceedings’ outcome, however, a ruling against the interests of FIFA would overturn a mayor part of the new FFAR and would probably force FIFA to rethink the whole system. In this regard, it is worth remembering that FIFA had completely changed the system in 2007, replacing the licensed with the registered agent, only to return to the licencing obligation for FIFA agents in 2022 at the hands of the FFAR.