How much influence can the German Football Association (DFB) have on the multi-million dollar business of players' agents? This question occupies the Federal Court of Justice (BGH) after a lawsuit by player consultant Roger Wittmann.
In the three-hour hearing of the Karlsruhe cartel senate, it quickly became clear that the judges considered the DFB regulations for intermediaries to be problematic in a number of points. However, the obligation to register and the restrictions to protect young talent could endure.
However, the judges are still undecided on very fundamental questions and wanted to consult intensively again. Chairman Wolfgang Kirchhoff said that a referral to the European Court of Justice (ECJ) is also possible. The decision should be made on June 13th.
Players' agents represent professionals or clubs when concluding a professional contract or during transfers. This is lucrative: According to the German Football League (DFL), in the 2021 financial year the clubs in the Bundesliga spent between 32.78 million euros (Borussia Dortmund) and 878,000 euros (VfL Bochum) on brokerage services. According to the world association FIFA, the international transfer business, which is worth billions, was around 586 million euros in 2022.
FIFA and DFB want to ensure more control
FIFA and DFB want to ensure more transparency and control in the opaque market. "Players' agents do a good and important job," said the DFB lawyer from the lower courts, Martin Stopper. But if the Champions League clubs are allowed to pay infinite amounts of money for the placement of players and the bottom of the table no longer have a chance, it definitely helps to create rules that ensure more equality.
The court is dealing with various points of the DFB regulations that came into force in 2015. Wittmann believes that the DFB is violating the ban on cartels. His lawsuit is supported by the German Football Players' Association (DFVV).
Wittmann's BGH lawyer Thomas Winter said the legislature saw no need to regulate the area. "If the rules of the game allow for a change of club, I can't intervene in the financial interests of third parties." You have to change the rules of the game. At the end of 2021, the Frankfurt Higher Regional Court had agreed with the DFB on some points and on other points with Wittmann's Rogon agency. On the other hand, both sides had lodged an appeal in Karlsruhe.
BGH sees further DFB rules critically
After the first preliminary consultations, the BGH judges were critical of even more DFB rules. In professional football, player changes are common practice despite ongoing contracts, said Kirchhoff. Against this background, a regulation according to which the agents are not allowed to secure a participation in a further future transfer of their player is a massive interference with the freedom to set prices.
It was also questioned that all payments must be disclosed. Kirchhoff said that the amount of compensation does not allow any conclusions as to whether non-sporting interests are involved.
On the other hand, it could be permissible for players and clubs to only work with agents registered with the DFB. The same applies to a rule according to which, in order to protect underage players, no commission may be collected as a matter of principle. New FIFA regulations came into force in January. Among other things, it stipulates that agents will have to obtain a FIFA license in the future in order to be able to officially operate on the market. In addition, multiple representations are to be prohibited and brokerage fees are to be limited. There is a transitional period until October 1st.
DFB lawyer Stopper said these rules would also end up in court. "And at some point you will have set the right framework so that the courts have also determined: What is worth protecting for sport and what is not."