Transfers – Why Lassana Diarra could revolutionize the transfer window

It is a decision that is closely scrutinized by all insiders. Because it could lead to a real revolution in the transfer window. This Friday, October 4, the Lassana Diarra case could sweep away an entire system. And not just a little. Jean-Louis Dupont, one of the French’s representatives, even announced an earthquake. “If the court follows the advice of the First Advocate General, FIFA’s current transfer system will become a thing of the past. predicts the Belgian, one of the lawyers behind of “the Bosman ruling” which put an end to quotas for foreign players in clubs in 1995, thus liberalizing the transfer market in Europe.

So why can FIFA be trembling? This Friday, the Court of Justice of the European Union (CJEU) must rule on the “Lassana Diarra affair”. The time of justice is not that of the media, it is a story that is starting to go back a little now. This dispute began 10 years ago. At the time, the former French international, who played for Real Madrid, Arsenal, Chelsea, OM and PSG, left Lokomotiv Moscow with a bang. While he still had three years of contract, “Lass” criticized the Moscow club for having lowered his salary for no reason. And in the end, the Russian club then broke its contract, accusing the midfielder of having stopped his commitment “syears just cause“.

Considering itself aggrieved, Lokomotiv Moscow brought the matter before the Fifa dispute resolution chamber, which imposed a fine of 10 million euros on the Frenchman, a sanction confirmed by the Court of Arbitration for Sport (CAS) in May 2016. The reason? In FIFA texts and in particular the regulations governing the status and transfers of players, it is specified that if a player terminates his contract “without just cause”, he must pay compensation which includes his remuneration and benefits until the end. of his initial deal. For months after his departure from Russia, Lassana Diarra also experienced some difficulty finding other training. Because the clubs, and in particular Sporting de Charleroi where the French midfielder almost signed, were afraid of having to pay part of this compensation.

In the FIFA regulations, the principle of “co-decision” is included, which “makes the club responsible for paying the fine if the player breaks his contract with his former club without just cause“, explains Erwann Mingam, Associate lawyer and Co-Founder of the WM Law firm. And like Charleroi, this could have cooled more than one team interested in signing the Habs for the 34 selections.

If Lassana Diarra finally had to wait until the summer of 2015 to sign with Olympique de Marseille after having been authorized by the dispute resolution chamber to look for a new club in May 2015, the former Le Havre took legal action in Belgium in 2016 to claim six million euros, on the grounds that he had been prevented from exercising his profession as a player in 2014-2015 when the Belgian club Charleroi refused to hire him.

Since then, this issue has seen numerous twists and turns. Until the moment when Belgian justice asked the CJEU a decisive question: is the regulation of the status and transfer of players compatible with competition law and the EU principle of free movement?

A vast question capable of deregulating everything in the opaque world of FIFA, which is used to making its rules without worrying too much about European laws. And if the body is not calm today, it is because last May, the first advocate general of the CJEU, Maciej Szpunar, agreed with Lassana Diarra and his representatives.

“These provisions (of FIFA) are likely to discourage and dissuade clubs from hiring the player for fear of a financial risk. The sporting sanctions faced by clubs hiring the player can effectively prevent a player from practicing his profession in a club located in another Member State“, wrote the Advocate General in his conclusions. “Limiting the ability of clubs to recruit players necessarily affects competition between clubs in the market for the acquisition of professional players“.

Since then, the football world has been speculating on the consequences that the CJEU’s decision could have if the court follows the opinion of the Advocate General, which is “the case in the majority of cases“, warns Erwann Mingam, who is closely following this case as a practitioner in sports law and competition law. A new situation could indeed emerge. And offer a new dimension to the market with greater freedom for the players, for example, could have chosen to leave PSG in the summer of 2023 when he was excluded from the tour in Japan.

But if some predict an earthquake, we must be careful. “I do not believe in an explosion at the level of the Bosman rulingexplains the lawyer from the WM Law firm. I don’t see the football market being completely deregulated, that is to say that from today, any player could take the pretext of a financial dispute, a sporting dispute or a tactical dispute to leave his club. It wouldn’t make sense.“

In the eyes of our specialist, the CJEU’s decision could go more in the direction of adapting the texts towards a less rigid framework. “What is criticized by Maciej Szpunar and which could be criticized by the Court of Justice, is the disproportion of the sanctions in the event of termination without just cause.explains Erwann Mingam. This means that we have a system of sanctions today which is far too dissuasive. It is disproportionate and discourages the player from leaving the club and especially new clubs from hiring players. Maciej Szpunar insists on this and believes that it is contrary to competition law“.

However, in the event of a favorable verdict for Diarra, lines will move. “If the court follows its advocate general, the different parties will have to come back to the table. And this time, FIFA will no longer be able to act alone, that’s for sure. It will have to take into account FIFPro, the interests of the players… to negotiate, a sort of unified collective agreement, which would be less dissuasive, more proportionate and more favorable to the interests of the players.estimates Erwann Mingam. But we must also not forget that the ban on breaking a contract without just cause and the sanctions that go with it can also protect the interests of players and ensure legal security through the stability of contracts. And that’s why I don’t believe in a total liberalization of the transfer market with the abolition of transfer window dates“. This Friday, October 4, 2024 could, however, be a date to remember in the modern history of football.