Legitimate Objectives in Antitrust Analysis The FIFA Regulation of Agents and the Right to Regulate Football in Europe

Legitimate Objectives in Antitrust Analysis The FIFA Regulation of Agents and the Right to Regulate Football in Europe

Petros C. Mavroidis

Columbia University - Law School

Damien J Neven

Graduate Institute of International and Development Studies (IHEID)

Abstract

The paper considers FIFA’s regulation of the market for agents, which has been challenged in a number of proceedings. Following the judgments of the Court on the ESL, ISU and Royal Antwerp cases, if the proposed regulation involves a restriction by object, it cannot fall outside the scope of Article 101 TFEU because of its pursuit of a legitimate objective. Assuming that the regulation would involve restrictions by effects, the question arises of which legitimate objective can be appealed to in order for its restrictions to remain outside the scope of Article 101 TFEU. A review of the case law on the scope of legitimate objectives suggests that, even if the Court has not pronounced it clearly on the matter, those accepted by the Court are related to the public policy objectives that the undertakings under consideration are entrusted to pursue. Such a restriction appears to be a welcome safeguard against a potential dilution of the discipline of Article 101 TFEU. From this perspective, legitimate objectives that could justify restrictions of competition by effects associated with FIFA’s regulation of the market for agents should be found within the regulatory function entrusted to FIFA. Whether the objectives put forward by FIFA in terms of addressing moral hazard, adverse selection and hold up in the (labor) market for agents can be cast in those terms is far from clear.