Why did the Court of Arbitration for Sport Find in Favour of the FIFA Football Agent Regulations?

Why did the Court of Arbitration for Sports Find in Favour of the FIFA Football Agent Regulations?

Introduction

Despite the majority of national courts across Europe and Brazil, arbitrational tribunals such as in the UK, and many national football federations including France and Spain, passing judgements against the FIFA Football Agent Regulations (FFAR); as we discussed last week, the Court of Arbitration for Sport (CAS), a preeminent authority in matters related to sports disputes, is the only institution that ruled in favour of FIFA, affirming the legality and justifiability of FFAR. 

The CAS ruling has been the only ruling in favour of FIFA so far. Hence, the question remains as to why the decision of the most dominant sports court contradicts the decisions made by national courts. In this blog we will analyse the CAS decision in more detail and try to understand what might have caused the surprising ruling and why the legal bodies of all the other courts and football federations came to such a contrasting conclusion. 

A Summary of the CAS Ruling

In a comprehensive but surprising ruling, the Court of Arbitration for Sport upheld the FIFA Football Agent Regulations after examining their compliance with international competition laws and other relevant regulations. CAS affirmed the FFAR’s alignment with the broader international framework, emphasising their proportionality in their role promoting fair competition within the football agent industry. The court found that while certain aspects of FFAR might deviate from established norms, these deviations were proportionate and reasonable in light of the regulations’ primary objective: enhancing transparency in the football agent sector. 

The CAS judgement seems to affirm that the FFAR represent a justifiable means to this end, recognizing that the regulations might entail some incoherence with international laws but are essential for achieving the desired outcome of a more transparent and equitable football agent industry, in accordance with international competition laws and other relevant regulations.

If this were right, why did all of the other national courts come to a different finding?

The Flawed Presentation of the Agents’ Case

A pivotal factor contributing to CAS’s favourable ruling for FIFA in the FFAR case can be attributed to the presentation of the agents’ case itself. This aspect warrants a closer examination as it played a substantial role in shaping the outcomes.

Surprisingly, the legal team representing the football agents in the CAS proceedings failed to mount a compelling case. Their presentation was marred by a lack of substantial evidence to bolster their arguments and substantiate their claims. This deficiency in strong, supporting evidence placed the agents’ case at a significant disadvantage right from the outset of the proceedings. With little to counter FIFA’s stance, CAS faced a challenging task in ruling against FIFA, given the absence of a robust case from the agents’ side.

This dearth of compelling evidence not only weakened the agents’ position but also hindered CAS’s ability to objectively evaluate the merits of the FFAR regulations. Without a well-constructed and substantiated argument from the agents’ lawyers, CAS was left with limited grounds to question FIFA’s claims or to consider alternative viewpoints. This factor undoubtedly played a substantial role in shaping the CAS decisions in favour of FIFA, highlighting the importance of a well-prepared and well-argued case in legal proceedings of such significance.

It seems strange that for such a significant case, being heard in the most reputable sports court, that a case could be presented so poorly. However, the reason was quite simple.

Conflict of Interest

A significant issue marred the Court of Arbitration for Sport’s proceedings: a potential conflict of interest. The Professional Football Agents Association (PROFAA) and FIFA jointly agreed to bring the case to CAS. Consequently, questions arose such as; Why didn’t PROFAA bring the case to the national courts in Switzerland instead? Why did they do as FIFA advised them to?

The Absence of Proof

In any legal dispute, the significance of presenting substantial and compelling evidence cannot be overstated. It forms the foundations upon which decisions are made, and the CAS case concerning the FIFA Football Agent Regulations relied heavily on such evidence. However, what stood out conspicuously in these cases was the remarkable absence of convincing proof that could effectively challenge FIFA’s position.

To paraphrase Paragraph 306 of the CAS award; “PROFAA has not contested any of the abovementioned elements and figures, and certainly not proven that FIFA has committed a manifest error of assessment […] PROFAA has not adequately supported this claim with evidence.”

Furthermore, Paragraph 372 states: “the Panel concludes that the Claimant has failed to provide the required evidence to prove that Article 15(2) FFAR (together with associated provisions Articles 15(3)-(4) FFAR and Article 16(3)(d) FFAR), Article 12(2) FFAR and Articles 12(8)-(9) FFAR are incompatible with Articles 101 and 102 TFEU.” 

In other words, these direct quotes from the judgement show that the lawyers representing the agents failed to produce concrete evidence or persuasive arguments capable of countering FIFA’s claims regarding the FFAR. This undermined the agents’ ability to present a robust case against the regulations. The lack of compelling evidence left CAS with limited grounds on which to question FIFA’s stance or to consider alternative viewpoints. Consequently, CAS ruled in favour of FIFA, as the agents’ legal team had not managed to establish a convincing case against the regulations. This critical importance of presenting a well-prepared and well-documented argument in any legal battle has been adhered to in other jurisdictions which found in favour of the agents’ case. This explains the contradictory nature of the CAS decision compared to national authorities.

Contrasting National Courts

As we have mentioned, in stark contrast to CAS, national courts across Europe such as in Dortmund and the Arbitration Tribunal in England have reached different conclusions regarding FFAR, often deferring the decision to the European Court of Justice and football federations have blocked their implementation.

The key difference is that these courts have been presented with properly presented cases, and lawyers have represented agents fairly. For example, the Rule K given by the English Arbitrational Tribunal acknowledges that CAS was not given the sam evidence but also states in Paragraph 187 that there was an “error of law” made by the CAS tribunal.

The presence of more robust and clearly given evidence has allowed these bodies to critically examine the regulations and question their legality more accurately. The divergent outcomes in these national courts demonstrates the significance of a well-presented case and the importance of an unbiased legal team.

Conclusion

The support of the Court of Arbitration for Sport for the FIFA Football Agent Regulations has raised important questions about the fairness and transparency of the proceedings. The flawed presentation of the agents’ case, the conflict of interest in lawyer appointments, and the absence of compelling evidence all contribute to the puzzling pattern of CAS rulings in favour of FIFA.