Attorney Mattia fat people gave our microphones an interview about the EU Court of Justice’s decision in the Diarra case. The FIFA rules would violate Community law. Attorney Grassani addressed the more specific aspects of this issue.
EU ruling that FIFA rules in the transfer market violate community law. What does that mean? The analysis of the lawyer Daniele Muscarà
The words of the lawyer Grassani
Will the Diarra ruling have the same impact as the Bosman ruling? “Probably not the same influence. Certainly, however, after 23 years since the approval of the FIFA Rules on the Status and Transfers of Football Players, approved by the FIFA Executive Committee on July 5, 2001, the international football body is forced to undertake a comprehensive revision of the rules governing the international transfers”.
Can you explain to us on a technical and legal level what this innovation entails? «In essence, the EU Court of Justice appears – in the absence of a full decision, one can only rely on the communication from the Luxembourg judges – some provisions of the FIFA regulations on the status and transfers of football players as ‘contrary to EU law’ and therefore appropriate , ‘obstructing free movement’, in particular those provisions that impose sporting sanctions and economic responsibilities on clubs that sign players who have terminated their previous contract without good reason, as well as those that allow a national sports association to do so “To refuse to issue the International Transfer Certificate (the transfer certificate authorizing one federation to another to register a player for a club to which it is affiliated) in the event of an employment contract or a dispute regarding its termination”.
So will a player really be free to terminate the contract at any time? «In fact, at international level, a player was already free to end the relationship with the club of origin and join another club belonging to a foreign federation. The point is that, to date, the new club interested in the player’s achievements would have been responsible, together with the player, for paying compensation to the previous club, in addition to being exposed to serious sporting sanctions, such as banning ‘incoming’ registrations for two transfer windows if the termination without good cause would have occurred during the so-called ‘protected period’ (defined as the first three years of sport if the terminated contract was signed before the player’s 28th birthday, or the first two years , if after). Therefore, the decision of the EU Court of Justice eliminates the responsibility and involvement of the target clubs of the player who resigned without a valid reason; a responsibility and involvement that, to date, had actually been effective deterrents to the early termination of contracts, commonly identified with the famous ‘Article 17 (of the FIFA Rules)’.
How will release work from a legal perspective following this ruling? «It is still too early to say: first the reasons for the decision must be read in order to get a clearer picture of the judgment. At international level, from a purely legal perspective, nothing is likely to change: players will continue to be able to move in two cases, either due to a signed transfer contract between the clubs of origin and destination or after the contract has been terminated. What could change are the consequences of this last possibility ».
What will be the consequences? «Until today, the unilateral termination of a player without a valid reason, especially at the top European level, was considered a very rare possibility, with very few applications (one of the first was Philippe Mexes, who ended the contract with Auxerre to be registered with Roma , among the Italian players I remember Morgan De Sanctis, who left Udinese to join Sevilla), both because of a kind of gentlemen’s agreement between the clubs and because of the clubs’ desire to avoid consequences – economic and disciplinary in nature, which would inevitably also affect those who would benefit from the services of the ‘terminated’ players, in accordance with standards now declared to be contrary to the principles of Community law. Now that the clubs are unlikely to be able to suffer any consequences as a result of the ruling of the European Court of Justice, the only person responsible for the termination of the employment contract and therefore obliged to pay the compensation for the early termination of the contract to the club of origin will be the player; Accordingly, cases of unilateral termination could increase.”
FIFA wrote in a statement: “We are satisfied that the key principles of the transfer system have been confirmed in the judgment. The judgment only calls into question two paragraphs of two articles of the FIFA regulations on the status and transfer of players.” What do these paragraphs refer to? «They refer to the aspects that I have already mentioned: the illegality of an administrative registration ban consisting in not issuing the International Transfer Certificate in the event of a pending dispute regarding the early termination of the contractual relationship by a player (which in reality constitutes a power which has practically never been exercised by the federations), as well as on the solidarity – economic and in some cases disciplinary – responsibility of a club interested in registering an athlete who has terminated the contract with the club of origin without good reason”.
For Diarra’s lawyers, however, it is a total victory: who is right? “In these cases it is difficult to say who is right: the ruling will certainly have positive effects for the players and will force FIFA to significantly revise its rules in order to prevent the transfer system from becoming a veritable jungle.”
Will the world of football be positively revolutionized? «In my view, the European Court of Justice’s decision will once again take away contractual power from clubs and deeply interfere with one of the main sources of their income, namely so-called ‘player trading’. In the absence of normative remedies from FIFA, the player who prematurely terminates the employment contract with the club of origin will be able to immediately move to another club and will be the only responsible party to the previous employer in terms of compensation: things are becoming increasingly difficult for the clubs in these cases , after being ‘abandoned’ by their own athlete, to receive appropriate compensation, as they can only receive this from the player if there are no adequate protections through the sports system expected by FIFA. In terms of operational consequences in the market, I expect an even greater increase in the contractual power of players and agents, to the detriment of the clubs, which should however represent the engine of the system, as well as a greater proliferation of the so-called ‘buy-out’ clauses, which could constitute an appropriate conventional method for determining the amount of compensation to which the club is entitled in the event of termination without good cause by the player.”
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