Will the Lassana Diarra case bring down the transfer market as we know it? | FIFA

bWhen Lassana Diarra played his last game as a professional footballer on October 20, 2018, he was a ‘what if?’ become. player. What if he had stayed at Arsenal for more than one season? What if he hadn’t made the catastrophic decision to leave Real Madrid and La Liga for Anzhi Makhachkala and the Russian league? What if he hadn’t made the even more disastrous move from Anzhi to Lokomotiv Moscow? What if he hadn’t had to withdraw from Didier Deschamps’ Euro 2016 squad at the last minute due to a knee problem?

Another injury forced him to retire shortly after a rare cameo for his last club, Paris Saint-Germain, for whom he was little more than a team player. Diarra would remain a footnote in the history of a number of prestigious clubs, a series of unanswered questions, something of an enigma – but then we have a lawsuit, which will finally be settled on October 4, finally putting an end to a story that has been going on for ten years. It’s Diarra against FIFA and if the player wins it could completely change the transfer market, potentially leading to anarchy.

There is a chance that this case will be how the double FA Cup winner, French and Spanish champion and 34-time France international will be remembered and how he will leave his mark on football as the man who changed the transfer market system knocked down as we know. His lawyer Jean-Louis Dupont thinks so. Yes, That Jean-Louis Dupont, the man who also represented Jean-Marc Bosman in his historic victory over UEFA almost thirty years ago.

It all started in the summer of 2014. Things had been simmering for a while between Diarra and his Lokomotiv manager, Leonid Kuchuk. The Frenchman had made an excellent start to what would be his only season at the Russian club, but faded after the winter break and found himself on the periphery of the first team in the new year.

Lokomotiv believed that the decline in his performance justified a decrease in his salary, which the player did not accept. The relationship deteriorated to such an extent that, according to the club, Diarra missed training a number of times under false pretenses, prompting Lokomotiv to terminate his contract (which had three years left to run) in August 2014 and sue him for breach of contract. .

The Russian club took the case to FIFA’s dispute chamber, which sided with the club and imposed a ban on the player. Lokomotiv also demanded financial compensation from Diarra, amounting to €20 million, the amount of the transfer fee they paid Anzhi for his registration. The case was referred by Diarra to the Court of Arbitration for Sport, which upheld the FIFA ban on appeal and ordered Diarra to pay Lokomotiv €10.5 million plus interest. “I will accept the situation as I have always done in the past,” Diarra said at the time. Well, not quite.

Diarra had not sought any candidates after Lokomotiv unilaterally terminated his contract. Belgian club Royal Charleroi made him an offer, subject to guarantees from FIFA and the Belgian Football Association that they would not have to pay the compensation requested by the Russian club; but when no such guarantee was given, Charleroi withdrew from the deal. This amounted to a restraint of trade and an infringement of the European rules. labor law.

The player was prevented from practicing his profession because FIFA had refused to issue the International Transfer Certificate (ITC) that the club concerned, in this case Charleroi, needed to register him with the Belgian Football Association. Diarra’s argument is that he played no role whatsoever in the transfer talks that took place between Lokomotiv and Anzhi, but was still blocked from resuming his career when he was denied his ITC by FIFA. The question for the Court of Justice of the European Union (CJEU) now is to decide whether FIFA’s refusal to issue the ITC was lawful or not.

Since the ITC rules form the basis of how the international transfer system works today, should the CJEU rule in Diarra’s favor on Friday, FIFA would have to review the process underpinning it all; and right now it looks like this might be the case.

For this to happen, the CJEU need only follow the opinion delivered last April by its own Advocate General, Maciej Szpunar, who said: “There can be little doubt as to the restrictive nature of FIFA’s regulations on the status and transfer of players. By their nature, the contested provisions restrict the ability of players to change clubs… The contested provisions necessarily affect competition between clubs in the market for the acquisition of professional players.”

Szpunar added: “The consequences of a player terminating a contract without just cause are so draconian that it is highly unlikely that a player would take this route. The impugned provisions are designed to act as a deterrent and send a chill down the spine of every player.”

The CJEU is not obliged to base its judgment on the judgment of its Advocate General, but neither can it ignore it completely. Legal sources believe that FIFA could have made a stronger case for itself by explaining the rationale for its transfer system rules to the Solicitor General, and may do so at this hearing. As other recent CJEU rulings have shown, most notably in the UEFA Super League case, European law allows sports governing bodies to undertake regulatory interventions that restrict competition and which would be considered unlawful outside the world of sport.

The key is whether these governing bodies can provide evidence that they are not doing this to pursue their own interests and not those of the sport as a whole. Should FIFA fail to prove this in court next week, Dupont may have reason to argue that we are about to enter the era of Bosman 2.0.

“The likely practical outcome of Diarra will be that the transfer system in football as we know it will collapse,” was one of the conclusions of Belgian sports law experts and academics Robby Houben, Oliver Budzinski and Melchior Wathelet – himself a former lawyer – general of the CJEU – when they investigated the case in June.

However, what would replace it in practice is not clear, except for one thing: FIFA would likely lose its overall authority over the transfer market, with collective bargaining between clubs and players becoming the norm, as is already the case is in other sports.

How a smooth transition from one system to another can be achieved without creating a regulatory vacuum in world football – and causing chaos in the transfer market – is difficult to fathom at this stage, which explains why the prospect of the 4 October is seen. with such trepidation in some quarters – and nowhere more so than at FIFA.