Today, we begin a three-part series exploring the recent opinions delivered by Advocate General Nicholas Emiliou on three pivotal cases involving sports governing bodies and their regulations. These cases, presented before the Court of Justice of the European Union (CURIA), delve into the autonomy of sports associations and their compliance with EU competition, internal market, and data protection rules.
Would you agree that sports organisations enjoy full discretion in their realm?
Introduction
In recent years, the Court has reviewed the compatibility of certain regulations adopted by international or national sports associations with EU competition and internal market provisions.
The present case, involving the Fédération internationale de football association (FIFA), is a natural follow-up to those cases.
The dispute concerns FIFA’s regulations governing the activities of players’ agents and raises various interpretative issues arising from EU provisions on competition, internal market, and data protection.
Legal Framework
The legal framework for this case includes Article 6 of the General Data Protection Regulation (GDPR), which outlines the lawfulness of processing personal data. Specifically, processing is lawful if it is necessary for the purposes of the legitimate interests pursued by the controller or a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject.
Facts, Procedure, and the Question Referred
The applicants in the main proceedings are:
- FT, an agent for players and the Vice-President of the players’ agents’ association ‘Football Forum’, and
- RRC Sports, a company based in Germany that also acts as a players’ agent.
- The defendant, FIFA, is a non-profit association governed by Swiss law and the global governing body for football. FIFA’s regulations, known as the FIFA Football Agent Regulations (FFAR), provide the framework governing the remuneration, activities, and conduct of players’ agents.
The applicants brought an action for an injunction before the Landgericht Mainz (Regional Court, Mainz, Germany) seeking to bar the application of certain rules of the FFAR on the grounds that they infringe:
- Article 56 TFEU – freedom of services,
- Articles 101 and 102 TFEU – competition rules, and
- Article 6 of the GDPR – processing of personal data.
- FIFA maintains that the rules are necessary for the integrity of football. I.e., football would collapse without them.
Preliminary Remarks
Advocate General Emiliou makes several preliminary remarks to set the scene for his opinion:
- Systemic Remarks:
- The practice of sport, in so far as it constitutes an economic activity, is subject to EU law provisions applicable to such activity. Rules adopted by sporting associations governing paid work or the performance of services by professional or semi-professional players may come within the scope of EU provisions on free movement and competition.
- The ‘sporting exception’ should be interpreted narrowly. Rules adopted solely on non-economic grounds and relating solely to sport per se must be regarded as extraneous to any economic activity.
- Methodological Remarks:
- The referring court asks the Court to provide guidance on the interpretation of four distinct provisions of EU law concerning a detailed set of regulations adopted by a world sports association.
- The Advocate General emphasizes the need for a specific assessment of the rules in question in light of their content, legal and economic context, and objectives.
Analysis
The Advocate General’s analysis focuses on the compatibility of the FFAR with EU law, particularly Articles 101 and 102 TFEU, Article 56 TFEU, and Article 6 of the GDPR. The analysis involves examining whether the rules in question have an anticompetitive object or effect, whether they can be justified under the Meca-Medina case-law, and whether they may benefit from an exemption under Article 101(3) TFEU.
In the next part of this series, we will delve deeper into the Advocate General’s analysis of the rules on agents’ remuneration and licensing, and their compatibility with EU competition law.
Stay tuned for more insights and detailed analysis in Part 2 of our series on Advocate General Emiliou’s opinions on sports governing bodies’ regulations.