“I'm sure that in 1985, plutonium is available in every corner drugstore, but in 1955, it's a little hard to come by.” (Dr. Emmett L. Brown)[1]

Back to the future?

Availing oneself of EU law in the ambit of sports in 1995 must have felt a bit like digging for plutonium, but following the landmark ruling of the European Court of Justice (ECJ) in the Bosman case[2], 20 years later, with all the buzz surrounding several cases where EU law is being used as an efficient ammunition for shelling various sports governing or organising bodies, one may wonder if in 2015 EU law is to be “found in every drug store” and the recent cases (see inter alia Heinz Müller v 1. FSV Mainz 05, Daniel Striani ao v UEFA, Doyen Sports ao v URBSFA, FIFA, UEFA) [3] cannot but invitingly evoke the spirit of 1995.

One of the aforementioned cases that also stands out pertains to the injunction decision[4] issued on 29 April 2015 by the Regional Court (Landesgericht) in Frankfurt am Main (hereinafter: the Court) in the dispute between the intermediary company Firma Rogon Sportmanagement (hereinafter: the claimant) and the German Football Federation (Deutschen Fußball-Bund, DFB), where the claimant challenged the provisions of the newly adopted DFB Regulations on Intermediaries (hereinafter: DFB Regulations)[5] for being incompatible with Articles 101 and 102 TFEU.[6] The Court, by acknowledging the urgency of the matter stemming from the upcoming transfer window and the potential loss of clients, deemed a couple of shells directed at the DFB Regulations to be well-aimed, and granted an injunction due to breach of Article 101 TFEU.

(Un)harnessing the brokerage in football

The recently adopted FIFA Regulations on Working with Intermediaries (hereinafter: FIFA Regulations)[7] arguably represent the biggest turning point in the regulation of player and club representation in the history of professional football.[8] While some will argue that by implementing these Regulations, FIFA has thrown in the towel on regulating the ambit of representation in football altogether, it could be said that by steering away from controlling the access to the activity and switching the onus on regulating it, FIFA has not deregulated the activity, but rather shifted the scope of the regulation itself.[9] It has been anticipated that the implementation process would expose several contentious issues (e.g. recommended commission cap, duty of disclosure, representation of minors, suitability of intermediaries, etc.),[10] and the DFB’s adoption of the new Regulation has been no exception in that regard.[11]

The DFB, pursuant to Article 1(2) of FIFA Regulations,[12] and following a rather lengthy exchange of information with the German Football League (Deutsche Fußballliga GmbH, DFL) and the German Association of Players’ Agents (Deutschen Fußballspieler-Vertmittlervereinigung, DFVV),[13] adopted the new DFB Regulations on 13 March 2015. By availing itself of the discretion embedded in Article 1(3) of FIFA Regulations,[14] the DFB tailor-made its regulations, which entered into force on 1 April 2015, to a certain extent, which shall be elaborated upon further below. 

Since the new DFB Regulations by virtue of paragraphs 2 and 3 of Article 3[15] indirectly bound the intermediary agencies through binding players and clubs when entering employment or transfer contracts,[16] which had not been the case with the pre-existent norms, the claimant first unsuccessfully sought the annulment of the Regulations directly from DFB. Subsequently, the claimant sought relief in the form of a temporary injunction from the Court, based upon the pending imminent danger stemming from the abuse of the DFB’s dominant position. Such behaviour, according to the claimant, limited the free choice of profession. Furthermore, according to the claimant, the obligatory disclosure of the remuneration amounts and the prohibition of representation remuneration when the player concerned is a minor went way beyond the borders of necessity and were thus unjustified.[17] The DFB, on the other hand, by rejecting the existence of a pending danger since the claimant had allegedly known of the FIFA Regulations for almost a year, deemed the claim inadmissible due to wrongful recourse to the urgent procedure (Eilverfahren), and additionally claimed the Articles 101 and 102 TFEU to be inapplicable, since the addressed provisions did not restrict competition, but au contraire prevented its distortion (i.e. by prohibiting the abuse of  the intermediary activity, providing for the independence of clubs and players, and guaranteeing transparency and contractual stability, hence bringing their scope within the borders of proportionality).[18]

Intermediaries v DFB: 1-0

The DFB’s guerrilla tactics of throwing the sink back at the claimant screaming for inadmissibility proved rather futile. The Court deemed the claim to be admissible and also found a large portion of the claimant’s arguments in the form of EU law-shaped shells to be well-founded. Subsequently, it granted an injunction as sought from the claimant. It addressed the issue through the prism of the Article 101 TFEU, and specific steps in the reasoning shall be dealt with separately below.

Admissibility as a non-issue

The DFB argued that such a claim could not be made in the urgent procedure, since the issue would pertain to the main cause. However, the Court pointed out that such a claim would be possible under Article 33 of the Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen, GWB).[19] Refusal of such a claim would deprive the claimant of its rights and legal remedies, particularly in the light of the pending danger of losing potential customers (clubs and players), bound directly by the DFB Regulations.[20] The Court also rejected the claim that the issue pertained to an internal decision-making process of the DFB, and said that the adoption of the Regulations had an externally oriented scope and effect.[21]

DFB Regulations are an inter-state trade restricting decision of an association of undertakings

The DFB asserted that it could not be seen as an association of undertakings in the sense of Article 101(1) TFEU considering that it also includes members with an amateur status. By referring to Piau,[22] the Court removed any ambiguity pertaining to the status of the DFB saying that: “...the mere fact that a sports association or federation unilaterally classifies sportsmen or clubs as 'amateur' does not in itself mean that they do not engage in economic activities within the meaning of Article 2 EC.”[23] Furthermore, strengthening its reasoning by first quoting Frubo,[24] stating that: ”Article 101 TFEU applies to associations in so far as their own activities of those of the undertakings belonging to them are calculated to produce the results to which it refers”,[25] and then BNIC,[26] it seemingly left no doubt as to the passive standing of DFB.

Having established the DFB’s status as per Article 101(1) TFEU, the Court moved to the DFB Regulations, and by drawing from Bosman,[27] Lehtonen,[28] and most importantly Piau,[29] qualified them as a decision of an association of undertakings, since they entail the regulation of the economic activity of intermediaries, whereby it is clear “...that the purpose of the occupation of players' agent, under the very wording of the amended regulations, is 'for a fee, on a regular basis [to introduce] a player to a club with a view to employment or [to introduce] two clubs to one another with a view to concluding a transfer contract'...”,[30] and therefore this economic activity cannot be qualified as one of a purely sporting nature.[31]

Albeit steering clear of an explicit reference to CJEU’s vast jurisprudence, the Court deemed the relevant market to be the one of intermediary services where the clubs and the players represented the customers and the intermediaries the providers,[32] hence following to a large extent the pre-established path in Piau.[33] It also pointed out that pursuant the provisions of Article 101(1) TFEU the core of the restriction of competition lied within an agreement (or a decision) which hampered the independence of economic decision making of the companies involved in a particular activity. The present case would prove as no exception since the intermediaries’ ability to provide services would take toll by the eventual non-submission of the signed declaration when entering an agreement with a player or a club upon whom loomed the eventual DFB sanctions. In other words, refusal to declare, which at the same time brought the intermediaries within the scope of DFB norms, limited the intermediaries’ economic freedom to be engaged by players or clubs.[34]

Moreover, the Court had little doubts about the Regulations affecting the inter-State trade. With Bundesliga alone representing the third largest national club football competition in Europe, the size of the market itself leads to the conclusion that the decision in question could have a negative impact on an actual or potential, direct or indirect inter-State provision of intermediary services, all the more so, since it lead to partitioning of markets on a territorial basis. In fact, by invoking Wouters,[35] the Court stressed that: “...it is sufficient to observe that an agreement, decision or concerted practice extending over the whole of the territory of a Member State has, by its very nature, the effect of reinforcing the partitioning of markets on a national basis, thereby holding up the economic interpretation which the Treaty is designed to bring about...” [36]

Possible justifications

Having brought the Regulations within the scope of Article 101(1) TFEU, the Court promptly looked at the available justifications, either within the ambit of Article 101(1) TFEU pursuant to the relevant ECJ jurisprudence, or as one of the explicit Treaty exceptions embedded within Article 101(3) TFEU. In light of the former provision it is worth pointing out that the notion of inherence to legitimate (sporting) purposes is crucial in this ambit, since certain potentially restrictive behaviours (e.g. adoption of transfer rules), may be, although caught by Articles 101 and 102 TFEU respectively, exempted from their scope due to their necessity in pursuance of such objectives. Such an inherent necessity must, however, be assessed on a case-to-case basis. Following such reasoning, and by referring to the landmark Meca-Medina case,[37] the Court invoked an almost blasphemous notion in the ambit of EU competition law by stating that such assessment of legitimate goals under Article 101(1) TFEU was to be addressed through the “rule of reason” doctrine.[38]

As an alternative route stemming explicitly from the Treaty, by referring back to Piau, the Court identified the provisions of Article 101(3) TFEU, which envisage that the Regulations “might enjoy an exemption on the basis of this provision if it were established that they contribute to promoting economic progress, allow consumers a fair share of the resulting benefit, do not impose restrictions which are not indispensable to the attainment of these objectives, and do not eliminate competition.” [39]

Summing up, the Court rather curiously, and perhaps simplistically, pointed out that the common denominator of both approaches entailed three key components; namely the Regulations would have to pursue a legitimate goal, and they would have to be necessary and proportionate. As one such legitimate goal, the Court recognised the issue of necessity to level the playing field in football competitions through a transfer system and thereof stemming regulation of the activity of intermediaries in order to prevent eventual abuses in the form of coerced transfers, and, even more importantly, to protect the minors involved in the process.[40] Both parties recognised the existence of past abusive practices that needed to be eradicated. Regardless of the legitimacy of the majority of the aims pursued, the Court established that certain provisions lacked the needed necessity and were disproportionate, as shall be addressed below.[41]

Individual (un)successful claims

Firstly, the Court deemed the registration obligation for clubs and players, which would bring the intermediaries within the scope of DFB and FIFA rules, to be disproportionate. While the registration and declaration obligations as such could be justified, the same could not be said for the pertaining subsumption of the intermediary service under the overarching umbrella of the DFB rules. The disproportionate full submission to DFB rules, which would strip the intermediaries of their possibility of recourse to ordinary justice, could be just as effectively replaced by a proper enforcement by the DFB of the registration rules themselves. Moreover, the Court found it unclear why the DFB would not be able to safeguard the goals pursued by the DFB Regulations before ordinary courts. [42]

Unlike the registration obligation, the duty to submit a criminal record along with the duty to pay a registration fee were seen as justified and thus proportionate in the eyes of the Court. Due to a potentially large impact of the intermediary activity on competition stemming from the potential influence on players and clubs, no less restrictive measure other than a registration duty could be put in place in order to safeguard the transparency of the football leagues. Moreover, considering the utmost necessity to protect the minors, the duty to submit a criminal record is clearly justified. Since the intermediaries financially benefit from their activity, the pertaining registration fee could also be deemed as a proportionate measure.[43]

The third addressed measure, i.e. the remuneration disclosure requirement, was also seen as justified by the Court. The legitimate aims set out in the previous paragraph were also to be pursued through the disclosure of agreements entered into and remuneration paid to the intermediaries. Such measures represented suitable means for controlling the intermediaries’ behaviour and were thus necessary and proportionate.[44]

The same can be said of the prohibition of acceptance of intermediary transfer fees for future transfers. In this context, the premature termination of contracts between clubs and players represented a major incentive for the intermediaries and at the same time a major source of revenue for clubs. The possibility of claiming a share of the transfer fees would therefore draw the intermediaries into seeking actively an early contract termination, as the new Regulations’ provisions were aimed at preventing such external influence, they are considered justified and proportionate.[45]

Fifthly, the imposition of flat-rate transfer fees was deemed unjustified by the Court, since it prohibited the agreed fee to be expressed in percentage pertaining to the cumulative transfer sum. This reinforced doubts that had previously been expressed about the proportionality of the parent FIFA Regulations provision, namely Article 7. Contrary to DFB’s arguments that such a scheme only required an a priori determination of the fee, the Court was not of the opinion that such a restrictive interpretation was appropriate, and that it could also lead to interpreting the provision in the way to detach the flat-rate fee entirely from the transfer sum. In other words, clubs would only be allowed to pay a prefixed amount that could not be expressed in percentage of the entire transfer sum. The Court also had doubts as to how such a restriction would serve the previously mentioned purposes.[46]

Last but not least, the Court also found the prohibition of remuneration of intermediaries of minors having the status of licensed players to be unjustified and disproportionate. By refusing the DFB’s argument to draw parallels with legal representation, the Court rather focused on the potential vulnerability of minors and their susceptibility to influence from the intermediaries, making this the crucial argument for (non)justification of the prohibition.[47] Stressing the legitimacy of a special protection of minors, who would due to their age and consequent inexperience rely heavily on the advice of the intermediaries, it also drew the line between the players plying their trade in the first and second league (licensed players) and others who participated in lower leagues. In the latter case a particular attention ought to have been given to minors brought to Germany from abroad.[48] It was only obvious, according to the Court, that minors playing in the lower leagues should benefit from a higher level of protection due to their stronger economic dependency to the intermediaries and hence susceptibility to their instructions. Minor licensed players, however, due to their market position alone warrant no such protection. Moreover, the significant disproportion of the amount of money spent on transfer fees for licensed minors makes such a prohibition in this ambit even more restrictive.[49]

Summed up, the Court deemed three out of six of the claimant’s legal missiles to have hit their target. First, the intermediaries may still be registered with the DFB without subjecting to its authority. Second, the prohibition of flat-rate transfer fees was unjustified, and third, the prohibition of remuneration of intermediaries of licensed minor players also exceeded the borders of necessity.[50] Since an injunction decision required an imminent and pending danger to be substantiated, as anticipated above, the Court circumvented the DFB’s argument that the claimant had almost a year, hence enough time, to get acquainted with the Regulations, by saying that Article 1(2) of the FIFA Regulations merely provided a minimum compulsory basis to be implemented, and that the DFB adopted substantially different Regulations pursuant Article 1(3) of the FIFA Regulations, leaving significantly less time for the claimant to comply.[51] The reference to previous FIFA Regulations met the same end, since the former pertained only to natural and not to legal persons.[52] 

Side-stepping Article 102 TFEU?

While the Court went to significant depths when analysing the case through the prism of Article 101 TFEU, it quite surprisingly almost completely refused to be drawn into the assessment of the matter through Article 102 TFEU, despite admitting, hence quite possibly just elegantly restating Piau,[53] to a possible existence of a collective dominant position by the DFB and its related associations on the market of intermediary service provision.[54] It merely concluded that there was no abuse in the sense of Article 102 TFEU.[55] One may find this curious at the very least, since the Court itself stated that DFB imposed its rules on non-members, intermediaries in this case, through economic pressure stemming from its monopolistic position on the market in question, which could to a certain extent at least be deemed as abusive.[56]

The epilogue or merely the end of Round One?

With the battle dust temporarily subsided, the DFB has seemingly complied with the Court’s injunction decision by issuing a note in which it restated the judgment’s tenor and informed the interested parties (intermediaries) of an ongoing possibility of a non-binding registration with DFB. The truce may only be a temporary one though, since the DFB has through its president already announced to pursue the matter in the main proceedings and a battle won does not necessarily mean that the war has been won.[57] Regardless of the outcome in Germany though, the issue carries a larger relevance. Since some of the DFB Regulations provisions, addressed in the hitherto analyzed injunction decision, resemble to a large extent if not entirely those embedded in the FIFA Regulations (e.g. the suspended Article 7(7) of DFB Regulations and Article 7(8) of FIFA Regulations),[58] one may wonder if, considering the already pending complaint of the of the Association of Football Agents (AFA) to the Commission,[59] legal challenges of the intermediaries regulations in other countries may only be a matter of time. Especially, since apparently these days EU law conveniently happens to be “available in every drug store”.

[1] R. Zemeckis, B. Gale, Back to the Future (Universal Pictures, 1985).

[2] Case C-415/93, Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman ao, [1995] ECR I-04921.

[3] See inter alia Case AZ: 3 Ca 1197/14, Heinz Müller v 1. FSV Mainz 05, Arbeitsgericht Mainz, 19 March 2015 ; Case 2013/11524/A, Daniel Striani ao v UEFA, Tribunal de première instance francophone de Bruxelles, Section Civile, 29 May 2015.

[4] Case Az. 2-06 O 142/15*, Firma Rogon Sportmanagement v Deutschen Fußball-Bund (DFB), Landgericht Frankfurt am Main, 29 April 2015.

[5] DFB-Reglement für Spielvermittlung, adopted on 13 March 2015.

[6] Treaty on the Functioning of the European Union (TFEU), Consolidated Version, O.J. 2012, C326, 26 October 2012 and as amended by the Croatian Accession Treaty, O.J. 2012, L112/1.

[7] FIFA Regulations on Working with Intermediaries, adopted in Zürich on 21 March 2014.

[8] D. Lowen, A guide to the FA’s Regulations on Working with Intermediaries (www.lawinsport.com, 17 February 2015), <http://www.lawinsport.com/articles/item/a-guide-to-the-fa-s-regulations-on-working-with-intermediaries>.

[9] D. Lowen, FIFA’s Regulation on Working with Intermediaries (T.M.C. Asser Instituut – Summer Programme, 30 June 2015), pp. 2.

[10] N. De Marco, The new FA Intermediaries Regulations & disputes likely to arise (www.lawinsport.com, 31 March 2015), <http://www.lawinsport.com/articles/item/the-new-fa-intermediaries-regulations-disputes-likely-to-arise>.

[11] Focus, Streit mit DFB: Gericht gibt Spielervermittler in Teilen Recht (www.focus.de, 30 April 2015), <http://www.focus.de/regional/frankfurt-am-main/fussball-streit-mit-dfb-gericht-gibt-spielervermittler-in-teilen-recht_id_4650008.html>.

[12] Article 1(2) FIFA Regulations, cited supra note 7: ”Associations are required to implement and enforce at least these minimum standards/requirements in accordance with the duties assigned in these regulations, subject to the mandatory laws and any other mandatory national legislative norms applicable to the associations. Associations shall draw up regulations that shall incorporate the principles established in these provisions.”

[13] Rogon v DFB, cited supra note 4, paras. 15-16.

[14] Article 1(3) FIFA Regulations, cited supra note 7: “The right of associations to go beyond these minimum standards/requirements is preserved.”

[15] Arts. 3(2), 3(3) DFB-Reglement für Spielvermittlung, cited supra note 5.

[16] Rogon v DFB, cited supra note 4, paras. 16-17: “Mit dieser Erklärung erkennt der Vermittler das Reglement auch für sich als verbindlich an und unterwirft sich damit der Verbandshoheit des Antragsgegners einschliesslich der Sportgerichtsbarkeit.”

[17] Ibid., para. 19.

[18] Ibid., paras. 32-39.

[19] Gesetz gegen Wettbewerbsbeschränkungen (GWB), (BGBl. I S. 1554), 26.07.2011.

[20] Rogon v DFB, cited supra note 4, paras. 43-45.

[21] Ibid., para. 46.

[22] Case T-193/02, Laurent Piau v Commission, [2005] ECR II-00209, para. 70.

[23] Rogon v DFB, cited supra note 4, para. 50.

[24] Case 71/74, Nederlandse Vereniging voor de fruit- en groentenimporthandel, Nederlandse Bond van grossiers in zuidvruchten en ander geimporteerd fruit "Frubo" v Commission, [1975] ECR 00563, para. 17.

[25] Rogon v DFB, cited supra note 4, para. 51.

[26] Case 123/83, Bureau national interprofessionnel du cognac (BNIC) v Guy Clair, [1985] ECR 00391, para. 17.

[27] Bosman, cited supra note 2, para. 127.

[28] Case C-176/96, Jyri Lehtonen and Castors Canada Dry Namur-Braine ASBL v Fédération royale belge des sociétés de basket-ball ASBL (FRBSB), [2000] ECR I-02681, paras. 53-60.

[29] Piau, cited supra note 22, para. 73: “As regards, second, the concept of a decision by an association of undertakings...This is therefore an economic activity involving the provision of services, which does not fall within the scope of the specific nature of sport, as defined by the case-law.”

[30] Ibid.

[31] Rogon v DFB, cited supra note 4, paras. 52-53.

[32] Ibid., para. 55.

[33] Piau, cited supra note 22, paras. 112-115.

[34] Rogon v DFB, cited supra note 4, paras. 57-58.

[35] Case C-309/99, J.C.J. Wouters ao v Algemene Raad van de Nederlandse Orde van Advocaten, [2002] I-01577, para. 95.

[36] Rogon v DFB, cited supra note 4, paras. 59-61.

[37] Case C-519/04 P, David Meca-Medina and Igor Majcen v Commission, [2006] ECR I-06991.

[38] Rogon v DFB, cited supra note 4, paras. 63-64.

[39] Piau, cited supra note 22, paras. 100-104.

[40] Rogon v DFB, cited supra note 4, paras. 66-68.

[41] Ibid., paras. 69-70.

[42] Ibid., paras. 72-73.

[43] Ibid., paras. 75-78.

[44] Ibid., para. 80.

[45] Ibid., paras. 83-84.

[46] Ibid., paras. 86-87.

[47] Ibid., paras. 89-91.

[48] Ibid., para. 93.

[49] Ibid., para. 94: “Für die Vermittlung von Lizenzspielern ist eine derartige Beschränkung allerdings unverhältnismäÿig. Lizenzspieler der ersten und zweiten Bundesliga sind nicht in dem Masse schutzbedürftig wie Vertragsspieler der unteren Ligen.”

[50] Handelsblatt, Gericht gibt Spielervermittler teils recht (www.handelsblatt.com, 30 April 2015),<http://www.handelsblatt.com/sport/fussball/streit-mit-dfb-gericht-gibt spielervermittler-teils recht/11716170.html>.

[51] Rogon v DFB, cited supra note 4, para. 104.

[52] Ibid., para. 105.

[53] Piau, cited supra note 22, paras. 117-118

[54] Rogon v DFB, cited supra note 4, paras. 98-99.

[55] Rogon v DFB, cited supra note 4, para. 100.

[56] Ibid., para. 96: “Hier geht es jedoch darum, dass die Antragsgegnerin aufgrund ihrer Monopolstellung Dritte faktisch in die Verbandsherrschaft zwingt, indem sie Verbandsangehörige mit Sanktionen bedroht, sollten diese nicht auf die Antragstellerin im Sinne einer Zustimmung zur Vermittlererklärung einwirken. Insofern fehlt es an der freiwilligen Unterwerfung; es handelt sich vielmehr um eine durch wirtschaftlichen Druck erzwungene Unterwerfung eines nicht verbandsangehörigen Dritten.”

[57] Hamburger Abendblatt, Landgericht bestätigt teilweise neue Spielerberater-Regeln (www.abendblatt.de, 30 April 2015), <http://www.abendblatt.de/sport/article205286615/Landgericht-bestaetigt-teilweise-neue-Spielerberater-Regeln.html>.

[58] Article 7(8) FIFA Regulations, cited supra note 7: “Players and/or clubs that engage the services of an intermediary when negotiating an employment contract and/or a transfer agreement are prohibited from making any payments to such intermediary if the player concerned is a minor ...”

[59] D. Lowen, cited supra, note 8.