The Advocate General of the European Court of Justice recently delivered his opinion in the Lassana Diarra case, stating that some FIFA rules on transfer of players may prove to be contrary to EU law. The CJEU will now have to deliberate in order to give a ruling on the question referred for a preliminary ruling.

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Advocate General's Opinion on the Lass Diarra case

During the proceedings before the FIFA Dispute Resolution Chamber pertaining to the dispute between Lassana Diarra and his last club Lokomotiv Moscow, concerning the contested obligation of the player to remit a sum of 20 million euros in compensation, Mr. Diarra concurrently initiated efforts to explore potential employment opportunities with alternative football clubs.

According to the player himself, the search proved to be extremely difficult. This was due to the provisions of Article 17 of the Regulations on the Status and Transfer of Players (RSTP), which states that «if a professional is required to pay compensation, the professional and his new club shall be jointly and severally liable for its payment». Similarly, the possibility of imposing economic and sporting sanctions on both the player and the club itself is considered, since, according to the RSTP «it shall be presumed, unless established to the contrary, that any club signing a professional who has terminated his contract without just cause has induced that professional to commit a breach».

Furthermore, the RSTP also provides for the possibility that the federation of the player's former club may refuse to issue the International Transfer Certificate (ITC), which is necessary for the new club to register the player, if there is a dispute between the former club and the player, which could also be contrary to EU law.

By decision of 18 May 2015, the FIFA Dispute Resolution Chamber partially upheld Lokomotiv's request and set the amount of compensation to be paid by the player at €10.5 million. The Chamber also declared that "Article 17.2 of the RSTP shall not be applied to the player in the future". On 24 July 2015, Lassana Diarra signed a contract with Olympique de Marseille.

Months later, the player filed a lawsuit against FIFA and the Belgian Football Association, claiming damages of €6 million for loss of earnings resulting from the application of regulations that the player considered to be contrary to European Union law. The court ordered both defendants to pay a provisional amount of €60,001. FIFA brought an appeal against that judgement.

On 17 October 2022 the Court of Appeal of Mons (Belgium) referred the following question to the CJEU for a preliminary ruling in the context of the dispute under consideration, asking the Court to interpret European Union law: are Articles 45 and 101 of the Treaty on the Functioning of the European Union to be interpreted as prohibiting the principle of solidarity in payment laid down in Article 17(2) TFEU and the possibility for the federation on which the player's former club depends to refuse to issue the CTI?

In his Opinion, the Advocate General states that, in effect «the provisions providing for a joint and several liability of the new club for payment of the compensation for breach of contract owed by the professional player to his or her former club in the event of premature termination of a contract without just cause are such as to discourage or dissuade clubs from hiring the player for fear of a financial risk». In a same way, the sanctions set out in the RSTP also have a dissuasive effect and «this can effectively prevent a player from exercising his or her profession with a club located in another Member State».

Before formulating his conclusion, the Advocate General recalls that «restriction on the freedom of movement for workers cannot be justified unless it, in the first place, serves one of the grounds of justification listed in Article 45 TFEU or an overriding reason relating to the public interest and, in the second place, observes the principle of proportionality, meaning that it is suitable for securing, in a consistent and systematic manner, the attainment of the objective pursued and does not go beyond what is necessary in order to attain it». 

«The RSTP, by limiting clubs’ ability to recruit players, necessarily affect competition between clubs on the market for the acquisition of professional players», states the Advocate General in addressing the possible restriction of competition by object.

Having analyzed the case in question, the Advocate General proposes that the Court should reply to the questions referred by the Belgian Court by «finding that the FIFA rules governing contractual relations between players and clubs may prove to be contrary to the European rules on competition and freedom of movement of persons». It is clear that the provisions set out in the RSTP may dissuade clubs from signing a particular player in view of the financial and sporting risk they would have to take.

Finally, we need to know that the Advocate General’s Opinion is not binding on the Court of Justice. While it carries significant weight and is often considered in the Court's deliberations, the final decision is made by the Court itself after careful consideration of all relevant factors.