Welcome back, readers!
In the first part of our series, we introduced Advocate General Nicholas Emiliou’s opinions on three significant cases involving sports governing bodies and their regulations.
Today, we continue with an in-depth look at the second case, Case C-428/23 (ROGON and others), which involves the Deutscher Fußballbund e. V. (DFB) and its regulations governing the activities of players’ agents.
Historically, sports has been “exceptional” playground. Though, agents are a pure business, even though they work in the exceptionla field of sports, without necessarily being athletes.
Introduction
The dispute in this case arises from requests for cease and desist lodged by three applicants:
- two undertakings providing consultancy and representation services to football players, and
- the managing director of one of those firms.
- They challenge certain rules set out in the DFB’s regulations, arguing that these rules infringe EU competition law.
Legal Framework and Background
The DFB is the umbrella organization of 27 German football associations, with approximately 25,000 clubs and more than 7 million members. It is also a member of FIFA and is subject to its regulations. The DFB adopted the Reglement für die Spielervermittlung (RfSV), which governs the activities of players’ agents and entered into force on April 1, 2015.
The RfSV imposes several obligations on agents, including:
- Registration requirements for agents and natural persons when registering a legal person.
- The production of an agent’s declaration, subjecting agents to various statutes, regulations, and rules of FIFA, the DFB, and the DFL.
- Prohibitions on agents sharing in the club’s future transfer proceeds and receiving commissions for services in respect of minors.
- Obligations to disclose fees paid and payments made to agents.
Breaches of these regulations can be sanctioned as unsportsmanlike conduct.
Questions Referred for Preliminary Ruling
The Bundesgerichtshof (Federal Court of Justice, Germany) referred two questions to the Court of Justice for a preliminary ruling:
- Do the principles developed in the Meca-Medina case-law apply to the regulations of a sports association that regulate the use of services of undertakings outside the association on a market upstream of the association’s activities?
- If so, must the Meca-Medina test be applied to all provisions of those regulations, or does its application depend on substantive criteria, such as the proximity of the individual rule to the sporting activity of the association?
Advocate General Emiliou’s Analysis
Scope of the Meca-Medina Case-law: Advocate General Emiliou explains that the Meca-Medina case-law applies to regulations of a sports association that concern the use of services of undertakings active in markets upstream or downstream of the association’s activities, provided that those services are capable of having a direct and significant influence on the association’s core activities.
He emphasizes that the rationale of the Meca-Medina case-law is to enable public authorities to leave certain matters to self-regulation by entities pursuing the economic activities concerned. However, this mandate must be limited to activities carried out by the undertakings represented in the association.
Application of the Meca-Medina Test: The Advocate General suggests that each rule included in a regulation issued by a professional body or sports association ought to be examined separately. However, there may be situations where it would be artificial to split a set of rules into its various components, as they constitute an indivisible whole.
He also notes that the degree of proximity between the activity of the association and the activity of the undertakings affected by the association’s rules is relevant in assessing whether the rules are necessary and proportionate in light of the legitimate objective in the public interest pursued.
Conclusion
Advocate General Emiliou proposes that the Court answer the questions referred for a preliminary ruling by the Bundesgerichtshof to the effect that:
- The Meca-Medina case-law applies to the regulations of a sports association that concern the use of services of undertakings active in markets upstream or downstream of the association’s activities, provided that those services are capable of having a direct and significant influence on the association’s core activities.
- The conditions laid down in the Meca-Medina case-law must, in principle, be applied in respect of each rule contained in regulations issued by a professional or sports association unless a meaningful assessment requires some or all of those rules to be evaluated in combination.
Stay tuned for the final part of our series, where we will explore the third case and provide a comprehensive conclusion on Advocate General Emiliou’s opinions.
Pro sports does not seem to be only a healthy movement, right? People do make business and iving out of it!