When the average Joe or Jane starts a new job, it’s likely that they will sign some kind of employment contract – setting out their salary, bonuses (where applicable), their job role, expectations and so on.
However, in the vast majority of cases, that contract will not stipulate that you can’t leave the job if you want to move to pastures new; yes, you’ll likely serve a notice period, but otherwise you are free to leave when you want.
So here’s a question: why doesn’t that right apply to a footballer’s contract with their club?
That’s the kernel at the heart of a legal case brought by the former French international Lassana Diarra. You may recall the midfielder from his playing days at the likes of Chelsea, Arsenal and Real Madrid, with a handsome trophy cabinet that includes medals from winning two FA Cups, the EFL Cup and both the La Liga and Ligue 1 titles.
But it’s in retirement that Diarra has truly moved the needle of world football. And his trailblazing legal battle with FIFA could yet change the face of the sport’s transfer market forever.
What is Diarra’s Argument?
To understand what Diarra is hoping to accomplish, we have to rewind more than a decade in time.
In the summer of 2014, Diarra was still playing and contracted to Russian club Lokomotiv Moscow. But he had fallen out with his employer, due largely to a dispute over his salary expectations, and basically walked out. Ultimately, Diarra was taken to a tribunal over an alleged breach of contract.
That hearing, presided over by FIFA’s dispute and resolution chamber, came down on the side of Lokomotiv. Diarra was forced to pay a staggering £9 million in damages out of his own pocket.
In the meantime, Sporting Charleroi made their interest in signing Diarra known public, while it was rumoured that the likes of West Ham and Celtic were also keen on the then 29-year-old.
But there was a problem: if any of those clubs had signed Diarra during his legal battle, they would have had to pay a compensation settlement to Lokomotiv for signing their player in this way.
Charleroi took their interest in Diarra to the next level, offering him a contract but on the proviso that they would not have to pay compensation for him, and that he would be legally free to join up with them by March 2015.
FIFA refused to confirm whether those two conditions would be possible, so Diarra attempted to force through the deal – even taking the matter to the President of the Commercial Court of Brussels.
But there was no budging from any party, and so Diarra was unable to take up his proposed contract with Charleroi, who had no choice but to take the offer from the table.
After failing with an appeal lodged with CAS (Court of Arbitration for Sport), Diarra went even higher and attempted to sue FIFA for loss of earnings. And, finally, in January 2017, law-makers decided that both FIFA and the Royal Belgian Football Association were responsible for the transfer deal falling through. He was paid around £5 million in damages.
The judgement was that FIFA had effectively broken EU law with regards to the freedom of movement of workers, with the governing body charged with preventing Diarra from finding gainful employment.
What Happened Next?
With the shackles of that long legal battle off, Diarra was free to resume his playing career.
He joined Marseille in 2015, staying for two seasons before latterly making moves to Al Jazira and his hometown club PSG.
36e What a pleasure to see Lassana Diarra play with OM’s jersey… What a player! #FCTOM pic.twitter.com/Ux33rowncX
— Olympique de Marseille 🇬🇧 🇺🇸 (@OM_English) January 13, 2016
The midfielder hung up his boots in 2019 at the age of 34. But something still rankled him….the manner in which football clubs are able to bully their players via the imposition of strict contracts that are rarely enforced in any other sector or industry.
And so Diarra sought legal counsel to effectively change the law, redressing the power balance between club and player.
Diarra vs FIFA: The Rematch
This time, Diarra would take matters right to the very top, with his case against FIFA heard at the Court of Justice of the European Union (CJEU).
The battle pitted FIFA against an unknown claimant known as ‘BZ’, although it was widely reported in the media that BZ was simply Diarra acting under a veil of identity – at least, that was the plan.
The central arguments of Diarra’s case were two-fold:
- That all individuals have the right to freedom of movement (including professional footballers)
- That competition within internal markets is preserved
EU law dictates that all sporting bodies and competitions, regardless of their size, must operate within the confines of European Union rules on employment matters – especially in avoiding the imposition of anti-competitive contract clauses.
And, this time, Diarra would have a key ally: the CJEU’s own advocate general, Maciej Szpunar. He had intimated his opinion that FIFA acted against Diarra’s right to movement when they effectively blocked his move to Charleroi, and that the Belgian club’s right to compete was harmed by the governing body’s decision that they would be liable to pay the player’s compensation to Lokomotiv.
It should be said that Szpunar’s statement was non-binding, i.e. he was simply offering an opinion, rather than referencing specific laws. But given the nature of his position as advocate general, Szpunar is considered to be highly influential in law-making.
The challenge is that if the courts agree with Diarra and Szpunar, FIFA may be forced to tear up the system of rules governing the transfer market – ultimately taking some of the power away from clubs and handing it back to the players instead.
The CJEU hasn’t rules that professional footballers should be allowed to enjoy freedom of movement beyond the scope of the law, however. That would be anarchy: players simply tearing up their contracts because they’ve fallen out with their manager, or been dropped from the first team.
Indeed, the CJEU has commented that clubs should lawfully be allowed to ‘maintain a degree of stability’ in their squad of players through the use of grey area contract clauses, while preserving the ‘integrity of competitions’.
What Was the Outcome of Diarra vs FIFA II?
Although not a slam dunk of a victory, the CJEU has come down on the side of Diarra.
They believe that some of FIFA’s transfer rules DO restrict the freedom of movement of players, while agreeing that the current legislation – which requires the buying club to pay compensation for a player that breaks their contract, as was the case with Diarra and Lokomotiv – was against EU law.
The official judgement reads:
“[the current rules] impede the free movement of professional footballers wishing to develop their activity by going to work for a new club. Those rules impose considerable legal risks, unforeseeable and potentially very high financial risks, as well as major sporting risks on those players and clubs wishing to employ them which, taken together, are such as to impede international transfers of those players.”
However, the CJEU did offer FIFA a potential get out clause, offering them the chance to display that their rules ‘by means of convincing arguments and evidence, [demonstrate] that all the conditions required for that purpose are met.’
FIFA has downplayed the rulings of what could prove to be a landmark legal case in football. Their chief legal and compliance officer, Emilio Garcia, commented:
“It is important to clarify that today’s decision does not change the core principles of the transfer system at all.
“FIFA has been continuously improving that system for many years to ensure that players can train, be developed and have stability, while safeguarding the integrity of competitions by implementing a robust regulatory framework for the international transfer system.”
It’s likely that the governing body will now tweak their rules to conform to the minutiae of EU law – with the possibility that barely anything will change, if they can convince the CJEU that the legislative alterations adhere to the necessary regulations.
Unsurprisingly, other organisations are keen to piggyback on Diarra’s success by forcing permanent change to the structure of the transfer market. FIFPro, whose function is to represent the best interests of its players, will look to use the ‘freedom of movement’ line in a bid to hand power to their members in determining their own futures.
Doing a Bosman
It perhaps won’t come as a great surprise to learn that the man behind Diarra’s legal success was none other than Jean Louis Dupont.
Who? He was the lawyer that masterminded the court case brought by Jean-Marc Bosman, the footballer who has done more to change the landscape of the beautiful game than any other – despite having a middling career out on the pitch.
Back in the 1990s, a club could demand a transfer fee for a player even after their contract had expired – the individual remained the ‘property’ of the club.
That seems ridiculous when you see it written down, and both Bosman – whose move to Dunkerque in the French league was scuppered after they were told to pay a transfer fee for him – and Dupont recognised as much.
So they too went to the European Court of Justice to challenge FIFA’s mind-boggling rule, and the court agreed that the legislation was unlawful.
That gave rise to the Bosman ruling, which decrees that a player can leave their club for free when their contract has expired – bringing football closer to the ‘freedom of movement’ legislation that forms EU employment law.
Bosman was revered as a saint by his fellow players, who opened all new doors for them, but clubs were aghast at the prospect of their stars simply running down their contracts and leaving on a free.
Indeed, when you consider the market value of some of the players that would secure moves via the Bosman law, clubs were left kicking themselves that they hadn’t tied their stars down to a longer contract – or simply sold them well in advance of the expiry date on their current deal.
- Kylian Mbappe – PSG to Real Madrid (market value: £150 million)
- Lionel Messi – Barcelona to PSG (market value: £50 million)
- Gigi Donnarumma – AC Milan to PSG (market value: £50 million)
- Robert Lewandowski – Borussia Dortmund to Bayern Munich (market value: £35 million)
- Michael Ballack – Bayern Munich to Chelsea (market value: £25 million)
- Steve McManaman – Liverpool to Real Madrid (market value: £20 million)
- Sol Campbell – Tottenham to Arsenal (market value: £20 million)
- Zlatan Ibrahimovic – PSG to Manchester United (market value: £15 million)
- Edgar Davids – Ajax to AC Milan (market value: £10 million)
The most high-profile Bosman deal of all time is that of Kylian Mbappe, who left PSG to join Real Madrid in the summer of 2024. It was a move that, ultimately, cost the Parisians around £150 million in transfer fees.
The Bosman ruling essentially kickstarted the transfer market as we know it today. Clubs have now lost some of their power, and must cash in on players that want to leave – otherwise they will lose out financially. As soon as a player has signalled their intention to leave, it makes sense to sell them and recoup a fee….rather than be left empty handed.
It will be interesting to see what, if any, impact Diarra’s ruling will have on the future of football transfers.
Will the Transfer Market Change After the Diarra Case?
There are two extremes that would emerge from the Diarra case.
The first is that nothing changes: FIFA appeal the CJEU’s decision, that is upheld and football’s transfer market rules remain the same.
On the other hand, it could spark a frenzy of rule changes. Players would be free to ‘break’ their contracts at will, before seeking out a move to a new club in the next transfer window.
Those are the extreme scenarios, and the reality is that the most likely outcome will reside somewhere in the middle.
That might be that players are allowed to break their contract when they have ample ground to do so. For example, Jadon Sancho’s spat with Erik ten Hag at Manchester United saw him banished from the first team and made to train with the youth squad instead. Should he, in that scenario, have grounds to seek employment elsewhere?
Or would the parameters be stricter. When Diarra fell out with Lokomotiv, they claimed that he had breached his contract and immediately stopped paying his wages. In that situation, the Frenchman must surely have grounds to walk away from the club and look for a move.
In some cases, it could see a shift from transfer fees as we know them today to a more compensation-based model of renumeration. The challenge in that would be that clubs would no longer have autonomy over the value of their players – right now, the selling club sets the fee and the buying club decides if that’s fair value or not.
But in a world of compensation payments, a new organisation would have to be created to decide, impartially, what a fair sum would be for a club to pay that has acquired the services of a player from another team following a walkout.
It could lead to a transfer system the like of which is utilised in American sports. In the NBA and the NFL, players can move from one team to another during the trade window – there’s no fee paid as part of the collective bargaining agreement that is in place. It would be difficult to see how this would work in reality in football, however.
There would be ramifications for all levels of football if transfer fees were abolished, effectively. What would be the advantage for clubs in developing youth players, given that they wouldn’t be able to sell them for a profit? How would clubs in the lower leagues survive without the transfer income that comes when sides from a higher level come along and poach their players?
It’s all speculation and hearsay right now, but if the courts do decided that current transfer rules need to be updated to bring them in line with EU law, you can be sure that the balance of power will shift more in the direction of players than their clubs.
And in the worse case scenario? It could see players down tools altogether, and simply walk away from a club where the fans hold them so dear without any penalty whatsoever.