By estimating this Friday that Fifa rules governing transfers between clubs are “opposites” to European Union law and “likely to hinder free movement” professional footballers, the Court of Justice of the EU (CJEU) is shaking up the transfer system.
At the request of the Belgian justice system, the high court established in Luxembourg examined the case of former French international Lassana Diarra, who had contested, ten years ago, the conditions of his departure from Lokomotiv Moscow. Due to a drastic reduction in his salary, Diarra (later with OM, 2015-2017) left the Moscow club, but the latter deemed the break unfair and demanded 20 million euros from him, returned at €10.5 million. Consequence: the Charleroi club had given up recruiting the Frenchman for fear of having to assume part of these penalties, in accordance with the FIFA regulations studied by the CJEU. These rules “are likely to hinder the freedom of movement of professional footballers”the Court ruled this Friday.
A “broken logic”
The court considers that they “poses on these players and on the clubs wishing to engage them significant legal risks, unpredictable and potentially very high financial risks as well as major sporting risks, which, taken together, are likely to hinder the international transfer of players”.
“The entire economic logic behind the transfer market is undermined today”explains to AFP Pieter Paepe, the lawyer for Fifpro, the international players’ union. “The Court does not say that players have the right to terminate their contract without any consequences, but that the compensation is disproportionate and that the unamortized transfer sum cannot be included.”as Lokomotiv requested from Diarra, adds the Belgian lawyer, who also defends the UNFP, the French players’ union. “Fifa also plans a sporting sanction against the player, and this is also disproportionate for the CJEU”adds Me Paepe.
These contentious rules “are intended to restrict, or even prevent, cross-border competition in which all professional football clubs established in the Union could engage”considers the CJEU in its judgment.
She had been asked a preliminary question by the Mons Court of Appeal, Diarra having first brought the matter before the Belgian courts. The CJEU now gives it back, after having said European law: “Subject to verification” by this Belgian court of appeal, these Fifa rules restricting competition “do not seem essential or necessary”.
A “major” decision
Belgian lawyer Jean-Louis Dupont, who defends the now retired 39-year-old French player, welcomed this decision. “major for the regulation of the labor market in football”. Me Dupont was already in action thirty years ago with the Belgian Jean-Marc Bosman, at the origin of the 1995 ruling which bears his name and had put an end to the quotas of foreign players in a club, a revolution in the era. If the lawyer first rejoiced in his press release for his client – “For Lassana Diarra, it’s a total victory” -, he enjoins “all professional players who have been affected by these illegal rules (in force since 2001) to request full compensation for their damages”.
Fifa does not have the same reading, “satisfied that the legality of the key principles of the transfer system has been reconfirmed”. Elle “only calls into question two paragraphs of two articles of the FIFA regulations on the status and transfer of players”estimates the International Federation. For Fifa, the ruling does not revolutionize its transfer system, but only asks it to review one rule: for the moment a club which wishes to recruit a player who has broken his contract is required to be responsible for the fine incurred. , a point that the International Federation seems ready to modify.
“The Bosman Affair 2.0”?
The CJEU’s ruling could, however, have much more significant consequences according to British lawyer Ian Giles, of the Norton Rose Fulbright law firm. “It is entirely possible that this means that players may feel that they can now break their contracts and sign with new clubs, without the selling club being able to keep them or demand significant transfer fees.”he explains. And the Diarra affair could then become “the Bosman 2.0 affair”, as Jean-Louis Dupont, the lawyer for the two players, estimated.
