ARTICLES
legaljournal.fifa.com
HOW TO RECONCILE CONTRACTUAL STABILITY IN FOOTBALL
WITH FREE COMPETITION? LESSONS FROM THE DIARRA CASE
Gustavo Albano Abreu
Lawyer by the National University of La Plata (UNLP), Argentina
Master in Business Law and Administrative Law from Universidad Austral, Argentina
Doctor in Law from Universidad Rey Juan Carlos, Spain
CAS Arbitrator
ABSTRACT
This article analyses the implications of the recent Diarra ruling, aiming to examine how the
decision redefines the tension between the pursuit of contractual stability in football and the
principles of free movement of workers and free competition, as established in the Treaty on
the Functioning of the European Union (TFEU). The analysis focuses on how FIFA regulations,
designed to protect employment contracts, may restrict players’ rights and competition among
clubs. The ruling argues that Article 17 of the Regulations on the Status and Transfer of Players
(RSTP) may impose restrictions on free movement and competition, both in its objectives and
eects. This rule would limit players’ ability to change clubs and clubs’ ability to sign contracted
players, violating Articles 45 and 101 of the TFEU. The decision of the Court of Justice of
the European Union (CJEU) criticises the compensation system for contract termination,
considering it disproportionate and discretionary, questioning the joint liability of the new club
and the use of the International Transfer Certificate (ITC) as unjustified pressure tools.
This work contributes to the debate on FIFA’s role as the governing body of world football and
proposes a review of Article 17 of the RSTP to balance contractual stability with players’ rights
and competition among clubs, advocating for alternatives that protect contracts without
violating the principles of the TFEU.
KEYWORDS
Contractual Stability, Free Movement, Free Competition, TFEU (Treaty on the Functioning of
the European Union), Indemnification, Proportionality, Diarra, Sports sanctions.
Gustavo Albano Abreu
Lawyer by the National University of La Plata (UNLP), Argentina
Master in Business Law and Administrative Law
from Universidad Austral, Argentina
Doctor in Law from Universidad Rey Juan Carlos, Spain
CAS Arbitrator
Summary: 1. Introduction. 2. Facts. 3. Presentation of Diarra before the
ordinary courts. The prejudicial question. 4. Conclusions of Advocate General
Maciej Szpunar. 5. The judgement of the Court of Justice of the European
Union. 6. Analysis of the aforementioned regulations. 7. Brief comments on
contractual stability and some history. 8. Are the Bosman and Diarra rulings
comparable in their eects? 9. Suggested changes. 10. Conclusions.
1. INTRODUCTION
The Court of Justice of the European Union (hereinafter CJEU) gave a
judgement on October 4, 2024, ruling on a reference for a preliminary ruling
from the Cour d’appel de Mons (hereinafter the Mons Court of Appeal) in
case C-650/22 concerning an action brought by the former professional
HOW TO RECONCILE
CONTRACTUAL
STABILITY IN
FOOTBALL WITH
FREE COMPETITION?
LESSONS FROM
THE DIARRA CASE
14
Nº 1/2026, pp. 12-39
FIFA® Legal Journal
football player of French nationality, Lassana Diarra, against FIFA and the
Royal Belgian Football Federation.
The CJEU held that certain articles of the FIFA Regulations on the Status
and Transfer of Players (hereinafter RSTP) adopted in 2014 are contrary to
Union law insofar as they (i) may hinder the free movement of professional
football players (Article 45 of the Treaty on the Functioning of the European
Union1 (hereinafter TFEU); and (ii) aim to restrict cross-border competition
of clubs in the transfer market (Article 101 TFEU).
The purpose of this paper is to analyse whether, in the light of the ruling
in case C-650/22, it is appropriate to amend the rules of the RSTP that are
incompatible with the TFEU, and whether this is possible without irreparably
damaging the contractual stability and balance of the international system
of transfers of professional football players.
2. FACTS
French footballer Lassana Diarra, known for his time with Chelsea, Arsenal
and Real Madrid, among others, was transferred from Anzhi Majachkala to
Lokomotiv Moscow (hereinafter Lokomotiv) in 2013. However, a year later,
the Russian club decided to terminate his contract citing a breach by the
player.
In August 2013, Diarra signed a four-year contract with Lokomotiv. At
the beginning he had a remarkable performance that led him to be elected
as the best player of the Russian league in the months of November and
December of that year. However, after the winter break, the player did not
perform as well and only played a few minutes in five out of 11 games.
The peak of tension occurred in the summer of 2014, when the club
proposed a salary reduction for the following season (2014-2015), which the
player did not accept, refusing even to show up for training.
Faced with Diarra’s position, on August 22, 2014, Lokomotiv terminated
the player’s contract and a few weeks later asked the FIFA Dispute Resolution
Chamber (hereinafter the DRC) to order the player to pay compensation of
1 The TFEU is the Treaty on the Functioning of the European Union, one of the
fundamental treaties establishing the legal and organisational basis of the European
Union (EU). This treaty, together with the Treaty on European Union (TEU), is one of
the main texts governing the functioning, competences and objectives of the EU. It
was signed in Rome in 1957 under the name Treaty of Rome and has been amended
several times to adapt to the evolution of the Union, adopting its current name after
the Treaty of Lisbon in 2009.
15
Nº 1/2026, pp. 12-39
FIFA® Legal Journal
€20 million, claiming that he had breached and terminated his contract
“without just cause”.
In September 2014, the footballer filed a counterclaim against Lokomotiv
requesting payment of wages owed and compensation equal to the
remuneration he would have received until the termination of the contract
on June 30, 2017.
Between August 2014 and early 2015 Diarra had several important oers
from clubs in Italy (Inter Milan), England (Queens Park Rangers and West
Ham United) and Scotland (Celtic Glasgow). However, negotiations did
not prosper because those teams feared being held jointly and severally
liable for compensation that could have been awarded by the DRC; since,
according to the provisions of Article 17 of the RSTP, if a professional player
must pay compensation, he himself and his new club have a joint and several
obligation to make the payment, with the regulations providing for the
possibility of imposing financial and sporting sanctions on both the player
and the club itself.
On February 19, 2015, Diarra received a new oer: Royal Charleroi were
interested in signing him, but with two cumulative suspensive conditions:
(1) that he should be registered and meet the regulatory requirements
to play for the first team of Royal Charleroi in any ocial competition
organised by the URBSFA [Union royale belge des sociétés de football
association ASBL (Royal Belgian Football Federation; hereinafter
“URBSFA”)], UEFA and FIFA, no later than March 30, 2015; and
(2) that (before the same date) there should be written and unconditional
confirmation that Royal Charleroi could not be considered a joint
debtor in respect of any indemnity (in particular, for contractual
termination) that BZ may be required to pay to Lokomotiv.
The respective lawyers of Diarra and Royal Charleroi requested, in
February and March, confirmation from FIFA and URBSFA that the player
could be registered and meet the regulatory requirements to play in the first
team and that Article 17 (2) and (4) of the RSTP would not apply against the
latter.
FIFA, by letter of February 23, 2015, replied that only the competent body,
and not its administrative body, has the power to apply the provisions of
the RSTP. For its part, the URBSFA communicated on March 6, 2015, that,
in accordance with FIFA rules, the registration of the player could not take
place as long as his former club did not issue a jurisdictional International
Transfer Certificate (hereinafter referred to as ITC).
On May 18, 2015, the DRC partially accepted Lokomotiv’s request and set
the compensation to be paid by Diarra at €10.6 million and declared that
16
Nº 1/2026, pp. 12-39
FIFA® Legal Journal
“Article 17.2 of the RSTP would not be applied to the player in the future”. This
decision would be ratified by the Court of Arbitration for Sport (hereinafter
CAS) in May 2016. Finally, on July 14, 2015, Diarra was signed by Marseille of
France.
3. PRESENTATION OF DIARRA BEFORE THE ORDINARY COURTS.
THE PREJUDICIAL QUESTION.
In December of the same year, with the support of the International
Federation of Professional Football Players (hereinafter FIFPRO), Diarra
filed a lawsuit against FIFA and the Belgian Football Association before the
Commercial Court of Hainaut (Belgium) claiming 6 million euros in damages
for loss of profit suered as a result of the application of provisions that he
considers contrary to European Union Law.
The two provisions invoked by the player in support of his request were
as follows:
The first is the one that enshrines the principle of free movement of
workers within the Union, i.e., Art. 45 TFEU, which provides as follows:
“1. The free movement of workers shall be assured within the Union.
2. Freedom of movement shall entail the abolition of any discrimination based
on nationality between workers of the Member States as regards employment,
remuneration and other conditions of work and employment.
3. Subject to limitations justified on grounds of public policy, public security and
public health, freedom of movement for workers shall include the right: to respond
to eective oers of employment; to move freely for this purpose within the territory
of the Member States; to terminate in one of the Member States in order to take
up employment there, in accordance with the laws, regulations and administrative
provisions applicable to the employment of national workers.
(...).”.
The second is Art. 101 TFEU. which establishes which decisions,
agreements or practices will be contrary to the right to free competition,
stating:
“1. All agreements between undertakings, decisions by associations of undertakings
and concerted practices which may aect trade between Member States, and which
have as their object or eect the prevention, restriction or distortion of competition
within the internal market, and in particular those which consist in:
a) directly or indirectly fixing purchase or sale prices or other transaction conditions;
b) limiting or control production, market, technical development or investments;
c) sharing markets or sources of supply;
d) applying unequal conditions for equivalent services to third parties, causing them
a competitive disadvantage;
17
Nº 1/2026, pp. 12-39
FIFA® Legal Journal
e) subordinating the conclusion of contracts to the acceptance by the other
contracting parties of supplementary services which, by their nature or according to
commercial usage, have no relation whatsoever with the object of such contracts.
2. Agreements or decisions prohibited by this article shall be null and void.
However, the provisions of paragraph 1 may be declared inapplicable to:
– any agreement or category of agreements between companies, - any decision or
category of decisions of associations of companies
– any concerted practice or category of concerted practices, which contribute to
improving the production or distribution of products or to promoting technical
or economic progress, while allowing users an equitable share of the resulting
benefit, and without:
a) imposing restrictions on the enterprises concerned that are not indispensable to
the attainment of such objectives;
(b) aording such undertakings the possibility of eliminating competition in respect
of a substantial part of the products in question”.
On January 19, 2017, the Belgian court declared his claim to be founded
in principle and ordered FIFA and URBSFA to pay a provisional amount of
€60,001. In the judgement, the court ruled that article 17.2 of FIFA violates
EU Community law, in particular, the right to free movement of workers, and
urged the highest international football body to compensate the footballer.
FIFA appealed the judgement to the Mons Court of Appeal, arguing mainly
that the court lacked jurisdiction over the player’s claim because the matter
fell under the exclusive jurisdiction of CAS, or at least not under Belgian
international jurisdiction. Alternatively, FIFA asked the court to declare the
claim inadmissible or unfounded.
URBSFA joined the case and supported FIFA’s arguments. Royal Charleroi
filed a voluntary intervention in support of FIFA and the player filed a
counterclaim requesting the court to declare that Article 17 of the RSTP,
Article 9 (1) of the RSTP and Article 8.2.7 of Annex 3 of the RSTP violate
Articles 45 and 101 of the TFEU, and .to establish that FIFA and URBSFA are
liable jointly and severally for the damages caused by the existence and
application of these rules.
In its referral decision, the Mons Court of Appeal upheld the decision of
the Hainaut Commercial Court to declare itself competent to hear Diarra’s
claim for damages in Belgium and concluded that the CAS arbitration
agreement invoked by FIFA was not valid under Belgian law because the
relevant FIFA statutes were too general and unclear to provide for such an
agreement.
The court also found that it had international jurisdiction over URBSFA
because its headquarters were in Belgium and the alleged damage occurred
in Charleroi, where the player was unable to play football despite the job
oer from Royal Charleroi.
18
Nº 1/2026, pp. 12-39
FIFA® Legal Journal
In addition, the court rejected the argument that Diarra had artificially
created a conflict in Belgium by securing a fictitious job oer, stating that
the player had made genuine eorts to secure employment at various clubs
throughout the European Union.
The court found Diarra’s claim admissible, as he had suciently
demonstrated his interest in pursuing the case, given the alleged harm
caused by the conduct of FIFA and URBSFA.
Finally, the court confirmed that the case raised the question of whether
the damage suered by the player when he was prevented from playing
professional football, during the 2014/2015 season, was caused by the
misapplication of rules in violation of Articles 45 and 101 TFEU.
Beyond the grounds invoked by the player, FIFA and URBSFA, the Mons
Court of Appeal considered that these rules could indeed violate freedom
of movement and competition and referred the preliminary question to the
Court of Justice of the European Union.
By order of 19 September 2022, received at the Court of Justice on 17
October 2022, the Mons Court of Appeal referred the following question to
the Court for a preliminary ruling:
“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 the payment, by the player and the club wishing to
contract him, of the compensation owed to the club with which the contract has
been terminated without just cause, as regulated in article 17.2 of the [RSTP], in
connection with the sporting and financial sanctions provided for, respectively, in
paragraphs 4 and 1 of the same article;
– the possibility that the federation of the player’s former club may refuse to issue the
international transfer certificate required for a new club to sign the player if there is a
dispute between the former club and the player (Article 9.1 of the [RSTP] and Article
8.2.7 of Annex 3 of the above-mentioned Regulations)?” .2
4. CONCLUSIONS OF ADVOCATE GENERAL MACIEJ SZPUNAR
In the preliminary question, the Advocate General intervened by
presenting his legal opinion after analysing the case in detail and examining
2 Comments were submitted by FIFA, BZ, URBSFA, the Fédération internationale des
associations de footballeurs professionnels (“FIFPro”), FIFPro Europe, the Union
nationale des footballeurs professionnels (“UNFP”), the Greek, French, Italian and
Hungarian Governments and the European Commission. FIFA, Diarra, URBSFA,
FIFPro, FIFPro Europe, UNFP, the Greek Government and the European Commission
also participated in the hearing held on 18 January 2024.
19
Nº 1/2026, pp. 12-39
FIFA® Legal Journal
the legal and contextual aspects of the preliminary question, oering his
interpretation on how European law should be applied or interpreted in the
case in question.
This opinion was thorough and impartial and analysed the case both from
the point of view of European Union law and its impact on the legal system
of the Member States. Although his opinion is influential, the Advocate
General did not participate in the deliberation or in the final decision of the
judges of the Court and his opinion remained indicative and non-binding,
although the final judgement is often aligned with his analysis.
4.1. THE BOTTOM LINE
The Advocate General held that: “What is decisive is that players are
eectively prevented from being able to sign for clubs in other Member
States”. As was the case with Diarra, a French footballer who was an
employee and intended to take up a job in Belgium, a country of which he
is not a national, and the controversial provisions eectively prevented him
from being able to do so.3
It then considered it necessary to analyse whether the provisions at
issue, Article 17 (1), (2) and (4) and Article 9(1) of the EUTR and Article 8 (2)
(7) of Annex 3 to the EUTR, pursuant to Article 101 (1) TFEU, can be equated
to conduct that has as its object or eect the prevention, restriction or
distortion of competition within the internal market.
To this end, it noted that the contested provisions constitute decisions
of associations of undertakings within the meaning of Article 101 (1) TFEU4 ,
which may aect trade between Member States within the meaning of the
same provision, clarifying that this conclusion is not undermined by the fact
that the contested provisions involve what is commonly regarded as labour
law.5
According to Article 17 of the RSTP, as soon as a player terminates a
contract without just cause, he is obliged to pay compensation and serious
sporting sanctions apply. In addition, pursuant to Article 8.2.7 of Annex 3 of
the RSTP, such a player shall not receive an international transfer certificate
in order for a club to field him.
3 See point 44 of the Conclusions.
4 Art- 101 par. 1 of the TFEU states: “All agreements between undertakings, decisions by
associations of undertakings and concerted practices which may aect trade between
Member States and which have as their object or eect the prevention, restriction or
distortion of competition within the internal market shall be incompatible with the
internal market and shall be prohibited.”
5 See point 46 of the Conclusions.
20
Nº 1/2026, pp. 12-39
FIFA® Legal Journal
The provisions in question, according to the reasoning of the Advocate
General, are designed to have a deterrent eect on any player and the same
applies to clubs potentially interested in acquiring players when they still
have a contract in force because the price to be paid for such a transaction
would be extremely high.
Following this argument, the regulations in question limit the possibility
for players to change clubs upon termination of their contract without just
cause and, correlatively, for other clubs to hire those players, when they have
terminated their contract without just cause.
Thus, the contested provisions, by limiting for clubs the possibility of
hiring workers, necessarily aect competition between clubs in the market
for the acquisition of professional players.6 While there are other situations
in which players can change clubs and be hired, as is usually the case in most
cases, when a contract is terminated without just cause, by the application
of the contested rules, competition is doomed to disappear.7
According to the Advocate General, contrary to the European
Commission’s interpretation8, these elements constitute strong indications
that there is a restriction of competition by object and, in the light of this
analysis, he considered that the contested provisions also have, at the very
least, the eect of restricting competition.
On this question, it concluded that Article 101(1) TFEU precludes the
provisions at issue and, in the event that the Court of Justice declares that
there is a restriction to competition not by object but by eect, the next
step would be to assess such provisions in the light of their objectives in
accordance with the judgement in Wouters et al., in order to determine
whether they are justified in pursuing one or more legitimate objectives in
the general interest which are not, in themselves, anti-competitive.9
6 See point 52 of the Conclusions.
7 See point 56 of the Conclusions.
8 See point 52 of the Conclusions where the Advocate General admits that “The
Commission considers that there is a restriction of competition by eect. It argues
that the provisions at issue cannot be considered to have the object of restricting
competition, having regard to their content, their economic and legal context and
the aims they pursue, given that they apply only in the event of termination of
contract without just cause. They therefore do not aect the possibility for clubs to
compete freely by signing players at the end of their contract with their former club
and during the term of those contracts, provided that all interested parties agree to
such a transfer and that it complies with the various temporal and substantive rules
governing the registration of players” (emphasis added).
9 See point 59 of the Conclusions.
21
Nº 1/2026, pp. 12-39
FIFA® Legal Journal
4.2. JUSTIFICATION OF THE RESTRICTION
In this regard, according to the Advocate General, a restriction on the free
movement of workers can only be justified if, firstly, it is based on one of
the grounds listed in Article 45(3) TFEU10 or on an overriding reason relating
to the public interest11 and, secondly, if it complies with the principle of
proportionality, which implies that it is appropriate to ensure, in a consistent
and systematic manner, the achievement of the objective pursued and that
it does not go beyond what is necessary to achieve it.12
4.2.1. Identification of a compelling reason of general interest.
FIFA and URBSFA argued, as a reason of general interest, that the
disputed provisions are intended to preserve contractual stability in the
professional football sector and, more specifically, to ensure compliance
with the obligations assumed by both players and clubs.
On this point, the Advocate General saw no problem in accepting these
reasons as overriding reasons of general interest, insofar as they do not
constitute objectives of a purely economic nature.
Moreover, the Advocate General recognized that contractual stability
is supposed to help ensure a certain level playing field between clubs
and recalls that the Court of Justice has expressly accepted the objective
10 Art. 45 of the TFEU establishes:
“(...)
Without prejudice to limitations justified for reasons of public order, public safety
and public health, the free movement of workers shall imply the right: a) to respond
to eective job oers;
(b) to move freely for this purpose within the territory of the Member States; (c) to
reside in one of the Member States for the purpose of pursuing employment there, in
accordance with the laws, regulations and administrative provisions applicable to the
employment of national workers; (d) to remain in the territory of a Member State after
having pursued employment there, under the conditions laid down in regulations made
by the Commission”.
11 “Over the years the Court of Justice has resorted to dierent terminology to describe
the non-economic reasons considered as grounds of justification that have been
(and are being) accepted in case law. See Martucci, F., Droit du marché intérieur de
l’Union européenne, Presses Universitaires de France, Paris, 2021, paragraph 261».
Cited in footnote 39 of the Conclusions.
12 See, to that eect, in essence, the judgements of 15 December 1995, Bosman (C-415/93,
EU:C:1995:463), paragraph 104; of 16 March 2010, Olympique Lyonnais (C-325/08,
EU:C:2010:143), paragraph 38; and of 10 October 2019, Krah (C-703/17, EU:C:2019:850),
paragraph 55.
22
Nº 1/2026, pp. 12-39
FIFA® Legal Journal
of maintaining a balance between clubs, preserving a certain equality of
opportunity and uncertainty of outcome.13
4.2.2. Proportionality
In accordance with the principle of proportionality, limitations may be
imposed only where they are necessary and actually meet the objectives of
general interest recognized by the Union or the need to protect the rights
and freedoms of others.
The burden of proving the proportionality of the contested provisions, in
this case, lies with FIFA, which must substantiate why they are appropriate
to ensure, in a consistent and systematic manner, the achievement of the
objectives pursued and that they do not go beyond what is necessary to
achieve them. It is then up to the referring court to assess the proportionality
of the contested provisions.
Generally speaking, it appears that the disputed provisions may promote
contractual stability and thus contribute both to the stability of the
composition of teams in sports competitions and to the objective related to
the maintenance of a balance between clubs in sports competitions, while
also preserving a certain equality of opportunities.
Finally, regarding adequacy, the Advocate General admitted that the
obligation of the player and the new club to pay compensation14 should
encourage players not to terminate their contracts without just cause and
discourage clubs from signing players who have terminated their contracts
early without just cause. The same applies to sporting sanctions15 and the
International Transfer Certificate16, the non-issuance of which worsens the
situation of the player concerned, creating a technical obstacle to his joining
a new club belonging to another federation.17
4.2.3. Need
With respect to the need for the disputed provisions not to go beyond
what is necessary to achieve the objective of contractual stability, the
payment of compensation for termination without just cause, according to
13 See the judgement of 15 December 1995, Bosman (C 415/93, EU:C:1995:463),
paragraph 106.
14 Article 17, paragraphs 1 and 2, of the RSTP.
15 Article 17, paragraph 4, of the RSTP.
16 Article 8.2, paragraphs 7 and 4, letter b) of Annex 3 of the RSTP.
17 See point 65 of the Conclusions.
23
Nº 1/2026, pp. 12-39
FIFA® Legal Journal
the Advocate General, may be considered reasonably necessary to achieve
the objective of contractual stability.
However, such compensation must be calculated in such a way that the
amount owed by the party to whom the lack of just cause is attributed does
not exceed the amount that could reasonably be considered necessary
to compensate the other party for the prejudice suered as a result of the
termination of that contract and to dissuade, in this case, the player from
terminating the contract without just cause.18
With regard to the solidarity of the new club19, the Advocate General considers
that systematically holding the new contracting club responsible for this goes
beyond what is necessary to achieve the legitimate objective, especially when
the new club has not been involved in any way in the termination of the contract.
The presumption in Article 17(4) of the RSTP that the new club has induced the
player to terminate the contract seems draconian.
While it may be argued, as FIFA does, that it is possible to derogate from
the application of Article 17(2) of the RSTP, since the DRC is empowered to
restrict the application of the principle of joint and several liability, conferring
this power on the DRC does not provide players and clubs with the necessary
legal certainty, since everything depends on the feasibility and speed of a
procedure that is dicult to assess.
With respect to the issuance of the CTI, Article 8(2)(7) of Annex 3 of the
RSTP, in the opinion of the Advocate General, entails the risk that the issuance
of the CTI may be refused on the basis of the mere allegation that the player
has not respected the terms of his contract and that the club had to terminate
it due to his alleged failure to comply with his contractual obligations.
Again, it could be argued that this system is suciently flexible in that,
in the event of a dispute between the player and his former club, FIFA
may take interim measures at the request of the new club in exceptional
circumstances.20 However, the Advocate General considers that these
arguments are too weak to conclude that such provisions are necessary to
achieve contractual stability.
18 According to Article 17(1) of the RSTP, the criteria to be taken into account for the
purpose of calculating compensation include the remuneration and other benefits
due to the player under the existing contract or the new contract, the remaining
contractual time, up to a maximum of five years, the fees and expenses paid by the
former club (amortized over the term of the contract), as well as the question of
whether the termination of the contract occurs within a protected period.
19 Article 17, paragraph 2, of the RSTP and sports sanctions, Article 17, paragraph 4, of
the RSTP.
20 In practice, if the player requests the provisional CTI from FIFA, it is in all cases
granted.
24
Nº 1/2026, pp. 12-39
FIFA® Legal Journal
4.3. CONCLUSION OF THE ADVOCATE GENERAL.
On the basis of the foregoing, the Advocate General proposed that the
Court of Justice answer the questions referred for a preliminary ruling by the
Mons Court of Appeal as follows:
“Article 101 TFEU must be interpreted as precluding rules adopted by an association
responsible for the organisation of football competitions at world level and applied
both by that association and by the national football associations which are members
of it, which provide that a player and a club wishing to sign him are jointly and severally
liable for compensation owed to the club with which the player has terminated his
contract without just cause and that the federation to which the player’s former
club belongs may refuse to issue the international transfer certificate, required for a
new club to be able to sign the player, if there is a dispute between the former club
and the player, provided that it is established, on the one hand, that such decisions
by associations of undertakings are liable to aect trade between Member States
and, on the other hand, that their object or eect is to restrict competition between
professional football clubs, unless, in the latter case, it is shown by convincing
arguments and evidence that they are justified in order to achieve one or more of their
legitimate aims and that they are strictly necessary for that purpose.
Article 45 TFEU must be interpreted as precluding rules adopted by an association
responsible for the organisation of football competitions at world level and applied
both by that association and by the national football federations which are members
of that association,
– which provide that a player and the club wishing to employ him are jointly and
severally liable for compensation owed to the club with which the player has
terminated without just cause the contract, unless it can be shown that it is actually
possible, within a reasonable time frame, not to apply that principle if it is established
that the new club was not involved in the early and unjustified termination of that
player’s contract, and
– which provide that the federation of the player’s former club may refuse to issue the
international transfer certificate required for a new club to sign the player if there is a
dispute between the former club and the player, unless it can be shown that eective,
real and expeditious interim measures can be taken if it is merely alleged that the
player has not respected the terms of his contract and that the club had to terminate
his contract because of his alleged failure to fulfil his contractual obligations.
5. THE JUDGEMENT OF THE COURT OF JUSTICE
OF THE EUROPEAN UNION
The Tribunal (Second Chamber) ruled:
“(1) Article 45 TFEU must be interpreted as precluding rules adopted by a private
law association whose purpose, in particular, is to regulate, organise and control
football at world level and which provides:
– firstly, that a professional player who is part of an employment contract, to whom
a termination without just cause of this contract is attributed, and the new club that
hires him after this termination are jointly and severally liable for the payment of
25
Nº 1/2026, pp. 12-39
FIFA® Legal Journal
the compensation due to the first club for which this player worked and which will
be fixed on the basis of sometimes imprecise or discretionary criteria, sometimes
devoid of an objective link with the employment relationship in question and
sometimes disproportionate;
– secondly, that, in the event that the incorporation of the professional player takes
place during a period protected by the terminated employment contract, the new
club incurs a sporting sanction consisting in the prohibition to register new players
for a given period, unless it proves that it did not encourage this player to break this
contract, and
– thirdly, that the existence of a dispute relating to this breach of contract prevents
the national football association of which the former club is a member from issuing
the international transfer certificate necessary for the player’s registration with
the new club, with the consequence that this player cannot participate in football
competitions on behalf of this new club, unless it is established that such rules, as
interpreted and applied in the territory of the European Union, do not go beyond
what is necessary to achieve the objective of ensuring the regularity of football
competitions inter-club while maintaining a certain degree of stability in the
membership of professional football clubs.
(2) Article 101 TFEU must be interpreted as meaning that such rules constitute a
decision by an association of undertakings which is prohibited by paragraph 1 of
that Article and which can only benefit from an exemption under paragraph 3 of that
Article if it is shown, by convincing arguments and evidence, that all the conditions
required for that purpose are met.”
5.1. GENERAL ANALYSIS OF THE SENTENCE
The court, in line with the opinion of the Advocate General, decided that
FIFA’s regulations are contrary to the movement of workers and infringe
competition in the market.
Following the Advocate General’s Opinion at21, the Court decided that
the solidarity provided for in Article 17.2 of the EULA, together with the
presumption of Article 17.4 and the sporting sanctions foreseen for the new
club, together with the non-issuance of the international transfer certificate,
eectively prevent players from signing for clubs in other Member States.
According to their reasoning, the combination of the aforementioned
regulations configures a legal and financial situation that is unpredictable
and potentially very burdensome for the new club, which, added to the
possible sporting sanctions, is sucient to discourage the contracting of
players.22
In addition, the regulations provided for in Articles 9 of the RSTP and 8.2.7
of Annex 3 of the RSTP, which prohibit the issuance of a CTI while there is
a dispute between the player and his former club for the early termination
21 See, in particular Points 43 and 44.
22 See Point 92 of the judgement.
26
Nº 1/2026, pp. 12-39
FIFA® Legal Journal
without cause of the employment contract, may prevent such players from
exercising their economic activity in any Member State, other than their
Member State of origin, preventing the sporting and economic interest of
any club in another Member State from hiring them, contrary to the principle
of free movement of workers within the Union .23
The judgement, based on recent decisions on the matter24, also inferred
that the aforementioned regulations have the purpose of restricting or even
preventing competition within the European Union.
Although it is recognised that such regulations are designed to prevent
poaching practices by clubs with greater economic resources, in practice,
such rules are comparable to a general, absolute and permanent ban on
unilaterally hiring players already under contract, imposed by the decision
of an association of companies to all professional football clubs and whose
weight falls on the workers, who are the said football players.
The distribution of these resources is thus restricted to the possible
transfers negotiated between these clubs, thus constituting a flagrant
restriction of the competition that these clubs could develop if the
aforementioned restrictions did not exist, generating a compartmentalisation
of the market to the benefit of these same clubs.25
In short, according to the ruling, the regulation analysed is, by its very
nature, detrimental to the competition that professional football clubs could
carry out by unilaterally hiring players already under contract with a club or
players whose contracts have been terminated without just cause.
6. ANALYSIS OF THE AFOREMENTIONED REGULATIONS
6.1. SOLIDARITY ESTABLISHED IN ART. 17.2 OF THE RSTP
In its pertinent part, the regulation states:
“If a professional player is obligated to pay compensation, the professional and his
new club shall be jointly and severally liable for its payment.”
This rule was designed to discourage players from breaching contracts
and to provide sporting and financial protection to the club that has invested
time and money in selecting the best players, securing their availability or
23 See Point 93 of the judgement.
24 Judgements of December 21, 2023, Royal Antwerp Football Club, C-680/21 and
December 21, 2023, European Superleague Company, C-333/21.
25 See point 146 of the judgement.
27
Nº 1/2026, pp. 12-39
FIFA® Legal Journal
eligibility (often at a significant transfer fee), and signing them for a specific
period of time to secure their sporting services.
The solidarity of the new employer for indemnity payments in cases of
termination of contract without just cause is a principle recognised in labour
law in several countries. This principle is most frequently applied in situations
of company transfer, labour continuity or outsourcing, where there is a direct
or indirect relationship between the old and the new employer with respect
to the employee’s employment relationship.
However, it is fair to recognise that the purpose of solidarity in labour law is
to protect the rights of the worker against corporate manoeuvres that could
deprive him of his rights. That is to say, to prevent the change of employer or
corporate ownership from implying a loss of labour rights and to protect the
worker against unfair practices, such as fraudulent transfers or simulations
aimed at evading responsibilities or violating his acquired rights.
The case of professional football players is clearly dierent. As we have
seen, the direct protection is towards the previous club, but it is important
to highlight that, although indirectly, the worker is also protected by
guaranteeing contractual stability, so important in the world of professional
football, and high salaries that are usually due to the clubs investing a lot
of economic eort into “buying their passes” and then in paying salaries in
accordance with those investments.
Following this reasoning, it does not appear that the solidarity of the new
club, by itself, constitutes a restriction on competition for the object. This is
so because it has not been regulated with the sole purpose of deliberately
limiting the mobility of players or dissuading clubs from competing with
each other. In fact, when there are clubs interested in contracting players
with current contracts, if both clubs and the player agree, the transfer of the
professional services of a contracted player is possible and it is common for
this to happen.
The solidarity of the new club seems more of an accessory measure to
protect contractual stability and compliance with sporting rules and to
prevent the new club from taking advantage of or enriching itself without
cause26, than a regulation to deliberately restrict player mobility or deter
clubs from competing with each other. The key may lie in analysing the
proportionality, purpose and actual eects of such regulation on the market.
26 Lassana Diarra joined Lokomotiv Moscow in August 2013, after Anzhi Makhachkala
decided to sell its entire squad due to budget cuts. Although the exact figures of
the transfer were not ocially disclosed, it is estimated that Lokomotiv paid around
€12 million for his signing. One wonders whether Royal Charleroi, had they acquired
Diarra’s services without paying a transfer fee, would not have been unjustly enriched.
28
Nº 1/2026, pp. 12-39
FIFA® Legal Journal
Finally, it should be noted that the principle of proportionality -and this
ruling is no exception-, since it has not always been adequately weighed,
confuses strictly general labour matters with the specifics of football, in
which not only are the workers special subjects, but proportionality must
also be weighed against the rights of the clubs and the investments made,
both in the transfers to acquire the services of the football players and in the
significant salaries agreed with them.
There is no other field, outside of sports, in which an employee is
“invested in” as in this area, and this investment must also be an extreme of
proportionality, as the principle of contractual stability, which has been so
weakened, must also be.
6.2. THE CALCULATION OF THE COMPENSATION ESTABLISHED
IN ARTICLE 17.1 OF THE RSTP
In this respect, the judgement questions this regulation because,
according to its understanding, the indemnities are fixed:
“...on the basis of criteria that are sometimes vague or discretionary, sometimes
devoid of an objective link to the employment relationship in question and sometimes
disproportionate.”
According to the judgement, the compensation system regulated by FIFA
allows the relevant courts to impose compensation for breach of contract
with sometimes imprecise, discretionary and disproportionate criteria. An
analysis of section 17 (1) shows that this is not the case.
First, the FIFA system allows the parties (clubs and players) to agree on
liquidated damages clauses in the employment contract to regulate the
economic consequences of a unilateral termination without just cause.
That is, clubs and players are free to include clauses in the contract that
predefine the amount of compensation in the event of termination without
cause, both on the part of the player and the club.
These clauses, known as termination clauses, contractual compensation
clauses or liquidated damages clauses, seek to provide certainty and
predictability to both parties in the event of breach of contract. They must
respect certain basic principles in order to be valid, such as proportionality
between the agreed amount and the damages that the breach may cause,
with respect to FIFA regulations and applicable labour laws in the country
where the contract is entered into, and the contract must clearly detail how
it will be calculated or what will be paid in case of breach.
If such a clause exists in the contract, it will be the main basis for
calculating compensation, provided it is valid. FIFA generally respects such
29
Nº 1/2026, pp. 12-39
FIFA® Legal Journal
agreements, unless it is considered abusive, disproportionate, or contrary to
the general rules of law.
Only in the event that the parties have not incorporated any specific
provision regarding the indemnity due in the event of premature termination
of the contract, the indemnity for breach of contract shall be due on the
basis of article 17.
Unlike what happens in the labour laws of most professional sports
around the world, FIFA’s regulatory system for determining compensation
for breach of contract without just cause can be considered comprehensive
and eective in addressing the problems related to breach of contract, as it
establishes clear and detailed rules to protect both players and clubs.
The regulation addresses all key elements: calculation of compensation,
mitigation of damages, and protection of contractual stability. It also allows
the inclusion of liquidated damages clauses in players’ and clubs’ employment
contracts, provided they are reasonable and respect the general rules of the
RSTP and national laws.
In addition, the case law of the Court of Arbitration for Sport (CAS)
on compensation for termination without just cause of the contract of
professional football players can be described as evolutionary, reasoned
and balanced, since it has applied general principles of sports and labour
law, taking into account the particularities of the football market
CAS general jurisprudence has shifted from favouring player mobility
(Webster) to a more balanced approach that protects contractual stability
and club rights (Matuzalém and El Hadary), while maintaining key principles
such as mitigation of harm and proportionality, always seeking to establish
compensation proportional to the actual harm suered, avoiding excessive
punishment or arbitrary compensation.
All this, in addition, adapted to the sports context and recognizing the
specificity of the football market, where the mobility of players and the
investments in them are fundamental. In sum, the analysed regulation
plus the briefly summarised jurisprudential path, allow the undersigned to
disagree with the arbitrary way in which the indemnities for early termination
without just cause of the employment contracts of professional football
players are allegedly established.
6.3. THE SPORTING SANCTIONS ESTABLISHED
IN ART. 17.3 AND 4 OF THE RSTP
In its pertinent part, the regulation establishes with respect to the player:
30
Nº 1/2026, pp. 12-39
FIFA® Legal Journal
“17. 3. In addition to the obligation to pay compensation, sporting sanctions shall
be imposed on a player who terminates a contract during the protected period.
The sanction shall consist of a four-month restriction on his eligibility to play in any
ocial match.”
Regarding the club:
17.4. “...sporting sanctions should be imposed on a club that terminates a contract
during the protected period or has induced the termination of a contract. Any club
signing a contract with a professional player who has terminated his contract
without just cause shall be presumed, unless proven otherwise, to have induced
the professional player to terminate the contract. The sanction shall be to prohibit
the club from registering new players, both domestically and internationally, for two
complete and consecutive registration periods.”
The judgement challenges this regulation only in relation to the club
because, according to its understanding:
“...in the event that the incorporation of the professional player occurs during a
period protected by the terminated employment contract, the new club incurs a
sporting sanction consisting of a ban on registering new players for a specified
period, unless it proves that it did not encourage this player to break this contract,...”
6.3.1. Analysis of sports sanctions
For many years, the sports sanction has been designed to protect the
stability of employment contracts in football, which is a fundamental
pillar of the professional sports system. Without this measure, clubs could
directly incentivise players to break contracts without cause, upsetting the
competitive and contractual balance by simply oering a higher salary.
The main objective is to discourage clubs from acting as “facilitators”
of contract breaches, thereby promoting an environment where labour
relations are respected. By imposing a severe ban, FIFA has always sought to
discourage clubs from seeking to gain undue advantage by signing players
who have broken contracts without just cause.
This forces clubs to be more diligent and responsible in their negotiations
with players under contract. In this way, the sporting sanction complements
the compensation obligations that already exist, ensuring that the new club
not only compensates the former aggrieved club financially, but also faces a
serious sporting consequence.
Since the origin of organised football, contractual stability has been and is
crucial in professional football to ensure the predictability of clubs’ investments
in players, and this sanction is intended to reinforce that principle. In this way,
the new club’s solidarity (economic and sporting) prevents players from acting
31
Nº 1/2026, pp. 12-39
FIFA® Legal Journal
unilaterally without considering the consequences for their former clubs,
especially if the new club encourages or tolerates such actions.
However, it is also fair to recognise that the transfer ban for two transfer
windows may be perceived as excessively severe, especially in cases where
the new club did not deliberately act as an incentive to break the contract. If
this were the case, the new clubs could be disproportionately punished and,
in addition to the sporting sanction, have to pay compensation.
The ban on squad reinforcements during transfer windows has a very
negative impact on the competitiveness of the sanctioned club, severely
limiting its ability to compete in the transfer market and aecting its sporting
and financial performance for at least one year. Although sporting sanctions
are not so common in practice, for both players and clubs, the fact is that
the sanction is in force and, ultimately, it is the members of the DRC or the
members of the arbitration panels who make the final decision.
Perhaps it is time to look at less restrictive solutions and, instead of
banning transfers, less restrictive sanctions could be implemented, such
as significant sporting fines or partial restrictions on the transfer market
(e.g., limiting the number of transfers in a window instead of banning them
altogether).
One possible improvement would be to adjust the sanction to be more
flexible, depending on the degree of responsibility of the new club. This
would ensure that the measure is fair and does not disproportionately aect
market dynamics and club competitiveness.
The sanction of a transfer ban for two transfer windows is reasonable from
the point of view of protecting contractual stability, deterring unjustified
breakups and holding clubs accountable for encouraging such behaviour.
However, its proportionality may be questioned in cases where the new club
has not acted maliciously or consciously.
6.4. THE SPORTS SANCTIONS ESTABLISHED IN ARTICLES 9 OF THE RSTP
AND 8.2.7 OF ANNEX 3 OF THE RSTP
In its pertinent part, the regulation states:
“9. International Transfer Certificate (RSTP)
1. Players registered with one association may be registered with a new association
only after the latter has received the international transfer certificate (hereinafter
referred to as “the ITC”) from the previous association”.
“Art. 8.2 Creation of an ITC for a professional player (Annex 3 of the RSTP)
7. The former association shall not deliver an ITC if a contractual dispute has arisen
due to the circumstances provided for in annex 3, article 8.2 paragraph 4 b) between
the former club and the professional player, in which case, at the request of the new
association, FIFA may take interim measures in exceptional circumstances”.
32
Nº 1/2026, pp. 12-39
FIFA® Legal Journal
The ruling questions the validity of this regulation because it prevents
the player in conflict with his former club from participating in football
competitions for another club:
“...the existence of a dispute related to this breach of contract prevents the
national football association of which the former club is a member from issuing
the international transfer certificate necessary for the player’s registration with
the new club, with the consequence that this player cannot participate in football
competitions on behalf of this new club...”
6.4.1. Analysis of sports sanctions
The purpose of the rule preventing the national association of the former
club from issuing the International Transfer Certificate (ITC) in cases where
a player has terminated his employment contract without just cause has
always been to protect the contractual stability and to ensure that FIFA
regulations on the Status and Transfer of Players are eectively enforced.
This mechanism has several specific purposes, one of the fundamental
principles of FIFA’s Regulations on the Status and Transfer of Players (RSTP)
is the stability of employment contracts in football. By blocking the issuance
of the ITC in the event of a breach without cause, FIFA seeks to discourage
conduct that undermines the integrity of contracts and to ensure that
parties respect the agreed terms, promoting greater accountability in the
transfer market.
The idea is that, if a player breaks his contract without just cause and the
national association issues the ITC automatically, the player could benefit
from his breach by being eligible to play for another club without facing
immediate consequences. By prohibiting the issuance of the ITC in these
cases, the contractual dispute is forced to be resolved first, preventing the
player and the new club from benefiting from the breach.
Thus, the retention of the ITC obliges the parties (player, former club and
new club) to resolve the dispute in an appropriate manner, generally through
possible direct agreements between the parties or otherwise by requesting
a decision from the FIFA Football Tribunal and, ultimately, through the
intervention of CAS.
Although the player cannot be immediately sanctioned without due
process, the non-issuance of the ITC acts as a deterrent by preventing the
player from participating in ocial competition until the situation is resolved.
This protects the rights of the former club while it is determined whether or
not there was a justified breach.
If the dispute is not resolved within a reasonable period of time, FIFA
may authorise a provisional registration of the player with the new club, in
order to prevent his career from being suspended indefinitely. This occurs
33
Nº 1/2026, pp. 12-39
FIFA® Legal Journal
in absolutely all cases where it is requested under the principle of the
protection of the player’s professional career.27
The refusal to issue the ITC is also intended to put pressure on the new
club, which may be held jointly and severally liable in the event of a termination
without just cause, by encouraging quick settlements or resolutions.
In summary, the rule preventing the national association of the former
club from issuing the ITC in cases of breach of contract without cause is
aimed at preserving contractual stability, promoting respect for employment
contracts, and preventing players or clubs from taking undue advantage of
breaches of contract. While protecting the rights of the former club, it also
seeks to maintain a balance between protecting the player’s career and
enforcing contractual rules.
However, even if the objective of the rule to maintain contractual stability
is very defensible, this should not prevent the player in question from
exercising his professional activity, nor should it prevent the new club from
registering the player for the sole reason that there is a dispute between the
player and his former club concerning a breach of contract that may not
have just cause.
Such a situation violates the principle of proportionality, in particular
because its application ignores the specific circumstances of each
individual case, in particular the factual context in which the breach of
contract occurred, the respective behaviour of the player in question and his
former club, as well as the role or lack of role played by the new club, which,
however, ultimately influences the ban on registering this player and fielding
him in competitions.28
7. BRIEF COMMENTS ON CONTRACTUAL STABILITY AND SOME
HISTORY
The CJEU has considered that maintaining a certain degree of stability
in a club may constitute a legitimate objective, provided that the principle of
proportionality is respected. In this regard, and although the final decision
is left to the discretion of the rosters of the Mons Court of Appeal of, the
CJEU seems to suggest that the current regulation cannot be considered
proportionate, given that it is not based on objective elements.
27 It is striking that the player Diarra did not use this route, in practice very accessible,
to apply for registration at Royal Charleroi.
28 See Point 112 of the judgement.
34
Nº 1/2026, pp. 12-39
FIFA® Legal Journal
While arguing that contractual stability should not be considered as a
legitimate general interest objective in itself, it should be considered as one
of the possible means to contribute to the achievement of the objective
valid general interest of ensuring the regularity of inter-club football
competitions.29
It is clear, then, that the Diarra case is centred on the contractual stability
of the contracts of professional football players, considered by the CJEU
as one of the possible means to ensure regularity in competitions. In
other words, the centrality and importance of this legal principle for the
international system of football competitions is not disputed, but some
aspects of the regulation that, more than twenty years after its creation,
should be corrected, are highlighted.
Contractual stability emerged as a compromise between clubs and
players to balance the freedom of movement of players with the need to
protect the contracts and investments of clubs. Until the Bosman ruling,
it had not been necessary to regulate contractual stability because, in the
first place, international transfers were not as frequent as they are now, and
secondly, in most countries there was still the right of retention.
With the Eastham vs. Newcastle ruling, the lien was repealed for
England30, and this jurisprudence soon led other countries to follow suit, but
only at the national level. Thus, in Argentina, they ceased to apply lien at the
national level in 1973 with the enactment of Decree Law 20.160: in Spain in
1979, when the AFE-Clubs agreement was signed and then Royal Decree
29 See Point 102 of the judgement, where it is further held that: “given that the
composition of the teams constitutes one of the essential parameters of the
competitions in which the clubs compete (judgement of 21 December 2023, Royal
Antwerp Football Club, C-680/21, EU:C:2023:1010, paragraph 61), that objective
may justify the adoption not only of rules relating, inter alia, to the time-limits for
the transfer of players during the competition, referred to in paragraph 100 of this
judgement, but also, in principle and without prejudice to their actual content,
rules intended to ensure the maintenance of a certain degree of stability in club
membership, which serve as a breeding ground for the composition of the teams
which those clubs may field during inter-club football competitions”.
30 For an in-depth study of the retention and transfer system, see, among others,
Chapter 12, entitled “Sport and contracts of employment” of Sports Law (Cavendish
Publishing, London, Second Edition, 2001, pp. 527-572) and Professional Sport in the
EU: Regulation and Re-regulation (Caiger and Gardiner Editors, TMC Asser Press,
The Hague, 2000) where the cases “are analysed in detail. Eastham v. Newcastle” and
“Bosman” An analysis of the doctrine of restraint of trade, in the cases of Eastham
v. Newcastle in football, Grieg v. Insole in Cricket and Adamson v. New South Wales
Rugby League Ltd. in Rugby, can be found in the book Sports Law by BELOFF, KERR
and DEMETRIOU, Hart Publishing, Oxford, 1999, p. 83.
35
Nº 1/2026, pp. 12-39
FIFA® Legal Journal
318/81 was enacted; and in Italy in 1981, with the enactment of Legge 91/81,
to give a few examples.
However, with the Bosman ruling, the European transfer system was
analysed, which still contained many countries, including Belgium, that
maintained a right of retention at the local level that aected the rules
throughout the European Union and had an international impact, as it
involved not only clubs from dierent countries, but also national federations
and the UEFA.
The Bosman case had wider implications, not only for European football,
but also for other sports, setting precedents on the application of free
movement rules to professional athletes and revolutionising European
football by allowing players to move freely between clubs at the end of
their contracts without transfer fees. It also removed limits on the number
of foreign players from the European Union, promoting a more open labour
market in European football.
The system of competitions and transfers had returned to the stage
before the Retain and Transfer System, which the English had created in
1893 to bring order to the competition and establish, for seventy years (until
1963), a kind of “English-style contractual stability”.
As a matter of strict necessity, in 2001, FIFA introduced major reforms to
its Regulations on the Status and Transfer of Players (RSTP), consolidating
the principle of contractual stability as a pillar of the system through the
Agreement between FIFA, UEFA and the European Union. These reforms
were partly driven by negotiations with the European Union, mainly due
to the eects of the Bosman case, which forced the transfer system to be
reconfigured and adapted to the principles of the European single market.
The origin of contractual stability in FIFA’s regulations is linked to the
need to regulate professional football in a balanced manner, after the
disappearance of the lien31, protecting both the rights of players and the
31 By way of background information, it is necessary to clarify that, although the right of
retention was eliminated at the time, there are still remnants of retention in Argentina
and in other countries. For example, article 207 of the General Regulations of the
Argentine Football Association (AFA) establishes for players the following “amateur”:
“Every year, those registered players who are included in any of the following cases
shall be classified as “free” amateur players: a) They have not been classified by the
club in whose favour they are registered in the registry. b) They have not participated
in an ocial match of the club in which they are registered for two years. This
period shall be counted from the last match played, without counting the term of
suspensions applied by the A.F.A.- c) That they have been declared free of action by
the respective club and that the A.F.A. has been informed in writing of their decision”.
(the underlining belongs to me).
36
Nº 1/2026, pp. 12-39
FIFA® Legal Journal
interests of clubs. Its implementation since the 2001 reforms, in the context of
the RSTP, reflects a commitment to fostering trust and respect for contracts,
consolidating a predictable system that benefits football as a whole.
8. ARE THE BOSMAN AND DIARRA RULINGS COMPARABLE
IN THEIR EFFECTS?
Both the Bosman and Diarra rulings, although referring to dierent specific
circumstances, apply general legal principles that impact contractual
relationships in professional football. When comparing the legal eects of
both decisions, remarkable similarities and dierences can be identified.
From the first, the restriction of freedom of movement, both judgements
recognise the fundamental right to free movement of workers, enshrined in
the Treaty on the Functioning of the European Union, and how sports rules
can restrict it.
In “Bosman”, the CJEU declared that the rules on transfer fees and the
limitation of foreign players violated this right. In “Diarra”, the same court also
recognised that FIFA rules, articles (in particular article 17) and concordant
of the Regulations on the Status and Transfer of Players (RSTP), may hinder
the freedom of movement of players.
Both decisions sought to strike a balance between the contractual
autonomy of clubs and the rights of players. In “Bosman”, the CJEU limited
the ability of clubs to impose restrictions on player mobility. In “Diarra”, the
CJEU analysed the validity of the FIFA rules establishing the joint and several
liability of the player and the new club in case of breach of contract without
just cause and the corresponding sporting sanctions.
In both cases, the CJEU required an objective justification for any
restriction on the free movement of workers. In “Bosman”, the court
rejected justifications based on the protection of competitive balance and
the promotion of the training of young players. In “Diarra”, it also analysed
whether FIFA’s rules complied with the principle of proportionality, i.e.,
whether they were necessary and appropriate to achieve their legitimate
objectives.
As for the dierences, these seem to be much greater. The Bosman ruling
had a broader and more direct impact on the system, invalidating the rules
on transfer compensation and the limitation of foreign players. In contrast,
in the Diarra case, the CJEU did not invalidate the FIFA rules, but asked
the national court to assess whether the relevant specific rules of the case
complied with the requirements of EU law.
37
Nº 1/2026, pp. 12-39
FIFA® Legal Journal
“Bosman” focused on restrictions on freedom of movement imposed by the
transfer rules and “Diarra”, on the other hand, focused on the joint and several
liability of the player and the new club in case of breach of contract without just
cause and on sporting sanctions, more specific aspects of the RSTP.
Both “Bosman” and “Diarra” demonstrate the complex interaction between
EU law and the rules of professional sport. Both decisions contribute to case
law that seeks a balance between the interests of clubs and the rights of
players, ensuring free competition and the protection of fundamental rights.
The Bosman case transformed transfer rules, while the Diarra case
rearmed the importance of contractual stability and severance payments
by confirming that it remains FIFA’s responsibility to establish, protect and
enforce an ecient regulatory system for international football to protect
the integrity of international sporting competition.
“Bosman” had a transformative impact on European football, changing
the rules of the transfer market in a fundamental way; while “Diarra”, although
important, focused on a more specific area (breach of contract) and its
impact is clearly more limited in terms of systemic scope. This is further
confirmed by the statistics that, of the total number of transfers, those with
unilateral breach of contract do not reach 5% of international transfers.
Following this reasoning, it can be inferred that the Bosman and Diarra
rulings are not directly comparable due to their dierences in legal context,
objective and systemic impact. However, both cases are examples of how
players’ rights and football regulations are constantly evolving.
9. SUGGESTED CHANGES
The following changes are suggested for the sole purpose of providing
ideas:
1) To eliminate the automatic joint and several liability in case of breach
of contract without just cause, leaving such a possibility only for
cases in which it can be demonstrated that the new club actually
induced the breach of contract.
2) Ensure a fair and equitable procedure for the issuance of the ITC that
allows the player to demonstrate the existence of just cause for the
breach of contract or the lack of merit of the dispute, or eliminate the
rule prohibiting the issuance of the ITC in the event of a contractual
dispute between the player and his former club.
3) Eliminate the automatic sporting sanctions imposed on clubs and
players that hire players who have broken their contracts without
38
Nº 1/2026, pp. 12-39
FIFA® Legal Journal
just cause, leaving such a possibility only for cases in which the
eective inducement of the new club to break the contract can be
demonstrated.32
4) Establish objective, less discretionary criteria for determining
severance pay. For example, the player’s salary, the length of the
remaining contract, the player’s age and the value of the transfer.
Given that a possible elimination of automatic new club solidarity and
sporting sanctions in the context of breach of contract without just cause
may discourage clubs from paying high transfer fees and oering contracts
with high salaries as hitherto33, the formation of a guarantee fund, aimed
at compensating clubs whose players break their contract without cause,
could be an innovative and balanced solution to address this type of conflict
in professional football.
This fund could guarantee compensation to the aected clubs while
protecting the players’ freedom to work for other clubs. This system should
ensure that the aected clubs receive compensation commensurate with
the financial loss suered by the breach of contract. With respect to the
players, this fund should protect the players’ rights by preventing financial
sanctions from unfairly impeding the players’ labour mobility, without
prejudice to the labour liability that may correspond to them.34
The fund should be managed independently and be financially
sustainable; it could also be administered by FIFA or an independent
entity supervised by FIFA, guaranteeing neutrality and compliance with
32 However, if inducement is not proven, it should not be forgotten that the new club
also has knowledge from the TMS that it is contracting a player with a unilateral
breach of contract whose just cause has not yet been determined. In such cases, it
seems reasonable that this club assumes, not on the basis of solidarity, but on the
basis of unjust enrichment without cause (the Swiss Code of Obligations foresees it
in articles 62, 119 and others) consisting of the duty to compensate for a lawful act
(hiring a player without having done anything wrong), the obligation to compensate
the previous club in case it is determined that the player dissolved the contract
without cause. For these purposes, perhaps the ITC itself, or through the TMS, can
inform the new club of the eventual parameters of a compensation (at least the
amount invested in his record, bonuses, salaries, termination clause, age).
33 If the values of the international transfers of football players were to be substantially
lowered, the income from the Solidarity Mechanism would be drastically reduced,
seriously harming the training clubs all over the world, especially those in South
America and Africa; and of course the salaries, in general, of all professional football
players.
34 A neutrally managed and collectively financed fund could provide a fair and
sustainable solution to compensate clubs in cases of contractual breaks without
cause. This mechanism would strengthen the stability of the international transfer
system and reduce tensions between clubs, players and federations.
39
Nº 1/2026, pp. 12-39
FIFA® Legal Journal
international regulations. The sources of financing could be contributions
from the clubs, a percentage of international transfer revenues, contributions
from federations and leagues with a portion of their revenues from television
rights or commercials, fines for non-compliance imposed on players or clubs
that violate contractual regulations, etc.
10. CONCLUSIONS
The Diarra case, which does not constitute a new Bosman case, only
raises crucial questions about the compatibility of the RSTP with EU law,
especially with regard to free movement of workers and the competition.
The CJEU’s ruling in the Diarra case sets an important precedent by
ruling that certain regulations of the RSTP are incompatible with Articles 45
and 101 of the TFEU. This decision has the potential to transform the transfer
system in professional football.
The regulations analysed, while seeking to protect contractual stability,
negatively aect the ability of players to seek new opportunities and of clubs
to compete on a level playing field.
The automatic joint and several liability of the new club in the event
of a breach of contract without just cause and the associated sporting
sanctions, such as a ban on signing players, or a ban on issuing the ITC, are
considered disproportionate restrictions on the free movement of labour
and competition.
However, the CJEU decision does not completely invalidate the RSTP,
but rather urges FIFA to amend it in order to bring it into conformity whith
EU law, opening a space for a constructive dialogue between FIFA and
the European institutions, with the aim of finding a balance between the
interests of clubs, players and fair play in football.
The Diarra case, while marking a new milestone in the relationship
between EU and professional law, and its in-depth analysis may provide
valuable insights into the future of football, does not call into question FIFA’s
position as world football’s governing body or its legitimacy to regulate
international football.
It is now up to FIFA to initiate a comprehensive dialogue with key
stakeholders to determine what conclusions should be drawn from the
Diarra decision and what are the most appropriate and desirable changes
to be made to Article 17 and the concordant provisions of the FIFA RSTP in
order to continue to provide, as in the past, a modern, robust and legitimate
regulatory framework for international football.