The Facts
On 20 August 2013, French football player Lassana Diarra moved from one Russian football club Anzhi Makhachkala to another Russian club Lokomotiv Moscow for a transfer fee of 20 million euros. The player signed a four-year contract with Lokomotiv Moscow.
After the player refused a pay cut and was also absent from training several times, Lokomotiv Moscow considered the employment contract formally terminated due to the player’s alleged breach of contract.
In addition to the termination for breach of contract, Lokomotiv Moscow claimed €20 million in damages from the FIFA Dispute Resolution Chamber (FIFA DRC) under Article 17 of the FIFA Regulations on the Status and Transfer of Players (FIFA RSTP). Namely, this article stipulates that in the event of a player’s breach of contract, the following sanctions may be imposed on:
- the player himself: compensation and suspension; and
- the new employer-club: joint and several liability to pay the compensation imposed on the player and a transfer ban.
Moreover, there was even a presumption (albeit rebuttable) under which the new employer-club is presumed to have incited the player to commit the breach of contract.
Both the FIFA DRC at first instance and the Court of Arbitration for Sport (CAS) on appeal ruled against the player and ordered him to pay €10.5 million in damages and 15 months’ suspension.
While the above-mentioned proceedings were pending, the player negotiated with several clubs, of which Belgium’s Sporting Charleroi was the most concrete. In the end, however, Charleroi also backed down out of fear of possible financial and sporting sanctions from FIFA.
Finally, due to the pending proceedings between the player and Lokomotiv Moscow, the Russian federation also refused to release the International Transfer Certificate (ITC). Until such ITC is issued, the federation of the new club simply cannot even register the player under Article 9 of the FIFA RSTP. For that reason too, the player’s transfer could not go through.
On 9 December 2015, the player challenged the CAS’ arbitration decision before the former Commercial Court of Hainaut, which ordered FIFA and KBVB to pay €6 million in compensation. FIFA appealed this judgment to the Mons Court of Appeal.
In the appeal before the Mons Court of Appeal, the player argued that the previous FIFA rules would be contrary to Articles 45 TFEU (free movement of workers) and 101 TFEU (prohibition of anti-competitive agreements or arrangements). In doing so, he explained that a footballer, like any other worker in the European Union, should be able to resign without risking financial and/or sporting sanctions himself or his new employer. The appeal court then referred a preliminary question to the Court of Justice, which has now been answered.
