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New ‘Bosman case’ could remove legal grounds under football transfer system

29 years after the Bosman case, is our country once again giving rise to a legal landslide in professional football? There is an opportunity now that the first Advocate General of the European Court of Justice, the Pole Maciej Szpunar, has submitted his opinion in the Diarra case against the world football association Fifa.

Lassana Diarra was a former Real Madrid footballer who broke his contract with Lokomotiv Moscow in 2013 and subsequently signed a contract with Sporting Charleroi. The club sought advice from the Belgian association and Fifa and was told that possible sanctions would follow because Diarra had unilaterally terminated his contract. Not only did the player have to pay compensation to Lokomotiv, his new club – Charleroi – would also be legally responsible. In addition, the Russian Football Federation was not allowed to issue an international transfer certificate for Diarra as long as there was a legal dispute between Diarra and his Russian club.

According to Diarra and his Belgian lawyers Jean-Louis Dupont and Martin Hissel – made famous 29 years ago by the Bosman judgment – the Fifa rules hindered the midfielder’s free movement of people in the European Union. Because the player remained unemployed throughout the 2013-2014 season, he demanded compensation in the court in Hainaut. The case was appealed and the Bergen Court of Appeal requested an opinion from the European Court of Justice. Ten years later there is a conclusion from the Advocate General, and the judgment is expected this autumn. In most cases the Court follows the Opinion of the Advocate General.

In his conclusion, Polish Advocate General Szpunar is strongly in favor of Fifa’s transfer rules. “There can be no doubt about the restrictive nature of the RSTP (Fifa’s transfer rules, ed.),” says the accompanying text. “These provisions discourage clubs from hiring a player in such a situation because they fear financial risks. Due to the sporting sanctions for the club that does employ the player, he may actually be prevented from practicing his profession at a club in another Member State.”

Transfer system overhauled

The sports world has been following the Diarra case closely for a long time. If the legal basis for the transfer system in football disappears, the clubs’ main source of income will disappear. This is particularly the case in Belgium, where professional athletes get out of their contracts based on the ’78 law. In football, this law is never applied, precisely because of Fifa regulations. If it were to disappear, the entire transfer system in our country would capsize.

“The Diarra case has been hanging over the clubs for years, but the possible disappearance of the transfer system was never taken into account,” says Brussels sports lawyer Sven Demeulemeester of Atfield. “Many today still think that everything will not be too bad and that a dilapidated transfer system will always exist. But if the Court of Justice were to follow the advice of Advocate General Szpunar, and that chance is real, the foundations of many clubs and Belgian football in general may have to be rethought.”

Diarra’s lawyer Jean-Louis Dupont responded in writing to De Standaard. “We welcome the conclusions of the First Advocate General and hope that the forthcoming judgment of the Court of Justice will be in line with this. It will then represent a new and essential milestone in the modernization of football governance within the EU (and perhaps beyond), by finally allowing the social partners, players’ unions and club unions to regulate their industrial relations. That will put an end to the dehumanizing practice of commercializing players.”

The Belgian Pro League announced that it is following up on the matter but does not wish to respond for the time being. The Belgian Football Association also does not want to respond.

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