Free Movement vs FIFA: 0

Introduction: the importance of European law

The Court of Justice of the EU (Court of Justice of the EU (CJEU)) has once again handed down an important ruling on the free movement of workers. It did so previously in the Beckham case. This time, the matter at hand is Lassana Diarra v FIFA, Case C-650/22, which is set to reshape the rules governing professional football across Europe.

We break down and analyse the ruling of the EU's highest court, which addresses whether private-law bodies holding regulatory, supervisory and disciplinary powers in the world of sport and football may sanction players and clubs when a player seeks to terminate an employment contract without just cause, or whether doing so constitutes an obstacle to the free movement of workers.

The Court of Appeal of Mons (Belgium) referred a preliminary ruling request (a procedural mechanism by which national courts seek an interpretation from the Court of Justice of the EU (CJEU)) posing the following question: Should Articles 45 and 101 of the Treaty on the Functioning of the European Union be interpreted as meaning that these two Articles PROHIBIT:

the principle of joint and several liability, on the part of the player and the club seeking to sign him, for the compensation owed to the club with which the contract was terminated without just cause, as governed by Article 17(2) of the FIFA Regulations on the Status and Transfer of Players (Fédération Internationale de Football Association), read in conjunction with the sporting and financial sanctions provided for in paragraphs 4 and 1 respectively of that same article;
the possibility for the football association to which the player's former club belongs to refuse to issue the international transfer certificate required for a new club to sign the player, where a dispute exists between that former club and the player (Article 9(1) of the FIFA Regulations on the Status and Transfer of Players and Article 8(2)(7) of Annex 3 to those Regulations)?

What happened in the Diarra case?

Lassana Diarra is a former professional footballer based in Paris, France. On 20 August 2013, he signed a four-year employment contract with Futbolny Klub Lokomotiv, also known as Lokomotiv Moscow, a professional football club based in Russia.

On 22 August 2014, Lokomotiv Moscow terminated this contract on grounds which, according to the club, related to Lass Diarra's conduct. On 15 September 2014, the club filed a claim before the DRC, pursuant to Article 22(a) and Article 24 of the RSTP, seeking an order that Lass Diarra pay compensation of €20 million, on the basis that there had been a "breach of contract without just cause" within the meaning of Article 17 of the RSTP. Lass Diarra subsequently filed a counterclaim before the DRC seeking an order that Lokomotiv Moscow pay him his outstanding wages, together with compensation equivalent to the remuneration that would have been due to him by virtue of that contract had it run its full term.

Lass Diarra states that he subsequently sought a new professional football club willing to sign him. He explains that, in the course of that search, he encountered difficulties arising from the risk that any club signing him could be held jointly and severally liable for the compensation he might be ordered to pay Lokomotiv Moscow under Article 17 of the RSTP.

By letter dated 19 February 2015, Sporting du Pays de Charleroi SA, a professional football club established in Belgium, offered to sign Lass Diarra, on the condition that the contract was subject to two cumulative suspensive conditions, namely:

first, that he be duly registered and eligible to play as a regular member of the club's first team, enabling him to participate in any competition organised by FIFA, UEFA and URBSFA for which he might be selected; and
second, that the club obtain written and unconditional confirmation that it could not be held jointly and severally liable for any compensation that Lass Diarra might owe to Lokomotiv Moscow.

By letter dated 20 February 2015, Lass Diarra wrote to FIFA and URBSFA seeking assurances, on the one hand, that he could be duly registered and eligible to play as a regular member of Sporting du Pays de Charleroi's first team and, on the other hand, that Article 17 of the RSTP would not be applied to that club. FIFA responded that only its competent decision-making body had the power to apply the RSTP. For its part, URBSFA responded that, in accordance with the rules established by FIFA, his registration could not take place until Lokomotiv Moscow had issued an ITC.

By decision of 18 May 2015, the DRC first partially accepted Lokomotiv Moscow's claim and ordered Lass Diarra to pay compensation of €10.5 million. Second, it dismissed Lass Diarra's counterclaim. Third, it stated that Article 17(2) of the RSTP would not apply to Lass Diarra in the future.

Following an appeal by Lass Diarra, the Court of Arbitration for Sport (hereinafter "CAS"), based in Lausanne (Switzerland), upheld this decision on 27 May 2016.

On 24 July 2015, Lass Diarra was signed by another professional football club, established in France.

On 9 December 2015, Lass Diarra filed a claim before the Commercial Court of Hainaut (Charleroi division) (Belgium), seeking an order requiring FIFA and the URBSFA to pay him compensation of €6 million, in respect of the loss he considered he had suffered due to the unlawful conduct of those two associations.

The FIFA Regulations at issue:

Rules governing employment contracts

Under Article 13 of the Regulations on the Status and Transfer of Players (RSTP), entitled "Respect of contract":

"A contract between a professional player and a club may only be terminated upon expiry or by mutual agreement."

Under Article 14 of the RSTP, entitled "Termination of contract with just cause":

"Either party may terminate a contract with just cause, without any consequences whatsoever (neither payment of compensation nor imposition of sporting sanctions)."

Under Article 16 of the RSTP, entitled "Prohibition of unilateral termination during the season":

"A contract cannot be unilaterally terminated during the course of a season."

Article 17 of the RSTP, entitled "Consequences of terminating a contract without just cause", provides:

"In all cases where a contract is terminated without just cause, the following shall apply:

In all cases, the party that has terminated the contract is liable to pay compensation. Subject to the provisions of Article 20 and Annexe 4 in relation to training compensation, and unless otherwise provided for in the contract, compensation for the breach shall be calculated with due consideration for the law of the country concerned, the specifics of the sport, and any other objective criteria. These criteria shall include, in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, the fees and expenses paid or incurred by the former club (amortised over the term of the contract), and whether the termination occurs within a protected period.

The right to such compensation may not be assigned to a third party. If a professional player is required to pay compensation, the professional player and his new club shall be jointly and severally liable for its payment. The amount may be stipulated in the contract or agreed between the parties.

[...]

In addition to the obligation to pay compensation, sporting sanctions shall be imposed on any club that breaches a contract or induces a breach of contract during the protected period. It shall be presumed, unless proven otherwise, that a club that signs a contract with a professional player who has terminated his previous contract without just cause has induced that professional player to terminate the contract. The sanction consists of a prohibition on the club from registering any new players, whether domestic or international, for two full and consecutive registration periods. The club may only register new players, whether domestic or international, as of the next registration period following the full completion of the sporting sanction in question. In particular, the club may not avail itself of any exception or provisional measures provided for under these regulations in order to register players before that deadline. »

Article 22 of the RSTJ, headed "FIFA's jurisdiction", provides:

"Without prejudice to the right of any player or club to seek redress before a civil court in disputes relating to employment, FIFA's jurisdiction extends to:

a) disputes between clubs and players relating to the maintenance of contractual stability (Articles 13 to 18) where a request for an [international transfer certificate (ITC)] has been made and where a claim has been lodged by one of the parties in connection with that ITC request, in particular as regards its issuance, sporting sanctions or compensation for breach of contract;

[...] »

Article 24 of the High Court of Justice (TSJ), headed "Dispute Resolution Chamber", provides, in paragraph 1:

"The Dispute Resolution Chamber (DRC) has jurisdiction to rule on any dispute referred to in [Article 22, points a), b) and e),] with the exception of disputes relating to the issuance of an ITC. »

Rules on Transfers

Article 9 of the RSTP, entitled "International Transfer Certificate", provides in paragraph 1:

"A player registered with an association may only be registered with a new association once the latter has received an [ITC] issued by the former association. The ITC shall be issued unconditionally, free of charge and without any time limit. Any provision to the contrary shall be null and void. The association issuing the ITC must send a copy to FIFA. The administrative procedure for the issuance of the ITC is described in [Article] 8 of Annex 3 [...] of these Regulations."

Annex 3 of the RSTP, entitled "Transfer Matching System", includes in particular Article 8 on the "Administrative Procedure for the Transfer of Professional Players between Associations", which provides:

"8.1 Principles:

Any professional player registered with a club affiliated to an association may only be registered with a club affiliated to another association after the former association has issued an ITC and the new association has acknowledged receipt of that ITC [...]

8.2 Creation of an ITC (International Transfer Certificate) for a professional player [...]

Upon receipt of the ITC request, the former association shall ask the former club and the professional player to clarify whether the contract has expired, whether it was terminated prematurely by mutual agreement, or whether both parties are in dispute due to a contractual conflict.
Within seven days of the date of the ITC request, the former association shall [...]:
a) issue the ITC in favour of the new association and indicate the date of the player's deregistration; OR
b) refuse the ITC request and indicate [...] the reason for the refusal, which may be the fact that the contract between the former club and the professional player has not expired, or that there was no mutual agreement on the premature termination of the contract. [...]
The former association shall not issue an ITC if the former club and the professional player are in dispute over a contractual conflict based on the circumstances set out in [Article] 8.2, [paragraph] 4b of this Annex. In such a case, at the request of the new association, FIFA may take provisional measures in exceptional circumstances. [...] Furthermore, the professional player, the former club and/or the new club may initiate proceedings before FIFA, in accordance with [Article] 22. FIFA shall then decide on the issuance of the ITC and on any sporting sanctions within sixty days. In all cases, the decision on sporting sanctions must be taken before the ITC is issued. The issuance of the ITC shall not prejudice the right to compensation for breach of contract."

What does the ruling in the Diarra case say?

The Commercial Court of Charleroi — equivalent to a court of first instance in Belgium — issued a ruling on 19 January 2017 finding the Diarra family's claim well-founded and ordering FIFA and the URBSFA to be jointly and severally liable to pay a provisional sum to Lass Diarra.

FIFA appealed this ruling before the Court of Appeal of Mons (Belgium), and Sporting du Pays de Charleroi, which lodged a voluntary intervention request before the referring court, supported the positions of FIFA and the URBSFA.

For his part, Lass Diarra, who lodged a cross-appeal on points of law, submitted in essence that the referring court should, on the one hand, declare that Article 17 of the RSTP, Article 9(1) of that Regulation and Article 8.2.7 of Annex 3 thereto infringe Articles 45 and 101 TFEU, and, on the other hand, order FIFA and the URBSFA jointly to compensate the damage he suffered as a result of the existence and application of those rules.

36 In its referral decision, the Court of Appeal of Mons, having declared both FIFA's appeal and the voluntary intervention request of Sporting du Pays de Charleroi admissible, found, in the first place, that the Commercial Court of Hainaut (Charleroi division) had correctly declared itself competent to rule on Lass Diarra's claim for compensation for the damage suffered by him in Belgium.

37 In this regard, the referring court considered, first, that the claim could not be regarded as falling within the exclusive jurisdiction of the CAS by virtue of an arbitration agreement meeting the conditions of validity required under Belgian law, given the general, undifferentiated and imprecise nature of the provisions of FIFA's statutes relied upon by that association to establish the existence of such an agreement in the present case.

38 The referring court then considered that the claim did indeed fall within the international jurisdiction of the court of first instance, inasmuch as it concerned both the URBSFA and FIFA. As regards the URBSFA, that jurisdiction was established on the basis that the association's registered office is located in Belgium and that Lass Diarra alleged damage suffered in Charleroi, where he was unable to pursue his professional footballing career despite the offer of engagement that Sporting du Pays de Charleroi had sent him. As regards FIFA, that jurisdiction was likewise established — notwithstanding the fact that FIFA's registered office is located in Switzerland — on the grounds that Lass Diarra challenged the non-contractual or quasi-contractual liability of that association, that the harmful event he relied upon materialised in Charleroi (Belgium), and that there was a particularly close connection between the dispute between the parties on this point and that jurisdiction. That said, Lass Diarra's decision to bring proceedings before the Commercial Court of Hainaut (Charleroi division) would have the effect of limiting that court's jurisdiction to the damage the claimant may have suffered in Belgium.

39 Finally, the referring court considers that FIFA and URBSFA are not justified in alleging the existence of "jurisdictional fraud" arising from the claim that Lass Diarra artificially engineered litigation in Belgium by obtaining, through fraudulent means, a fictitious offer of engagement from Sporting du Pays de Charleroi. In this regard, the court considers it established, first, that Lass Diarra took steps to be engaged by several clubs established in different Member States of the Union that had, according to the press, expressed interest in him; second, that Sporting du Pays de Charleroi took the unilateral initiative of offering to engage him; third, that Lass Diarra immediately took the necessary steps to ensure that the suspensive conditions set out in that offer were met; and fourth, that it was not unreasonable for him to pursue that offer, which was the only one available to him at the time to enable him to continue his professional career despite the dispute between him and Lokomotiv Moscow, and to limit the losses resulting from the interruption of his economic activity over several months.

40 Secondly, the Court of Appeal of Mons considers Lass Diarra's claim admissible, on the basis that he provides sufficient legal evidence of a legitimate interest in bringing proceedings as the holder of a subjective right which he believes he has suffered harm through the unlawful conduct of FIFA and URBSFA.

41 Thirdly and finally, the referring court notes that the main proceedings require a determination of whether the harm which Lass Diarra considers he suffered by being prevented from pursuing his activity as a professional footballer during the 2014/2015 season is attributable to the unlawful conduct of FIFA and URBSFA, consisting in applying to him rules that infringe Articles 45 and 101 TFEU — namely Article 17 of the RSTJ, Article 9(1) of that regulation, and Article 8.2.7 of Annex 3 to that regulation.

42 In this regard, that court notes, on the one hand, that according to Lass Diarra, those rules must be considered, in the light of the ruling of 15 December 1995, Bosman (C‑415/93, EU:C:1995:463 ), as impeding both the free movement of workers and competition. Indeed, the rule set out in Article 17(2) of the RSTJ — under which any new professional football club that engages a player following the termination of an employment contract without just cause becomes jointly and severally liable for the compensation that player owes to his former club — would deter clubs from engaging such players, to the detriment of both the players themselves and the clubs seeking to recruit them, all the more so given that the amount of that compensation, which must subsequently be determined according to the criteria listed in Article 17(1) of the RSTJ, is generally not known at the time the parties intend to conclude an employment contract. Furthermore, this obstacle is compounded by the rules set out in Article 17(4) of that Regulation, which provides that the new club is presumed to have induced the player to terminate the employment contract binding him to his former club and, in certain circumstances, exposes that new club to a sporting sanction. Similarly, the rules contained in Article 9(1) of the RSTJ and Article 8.2.7 of Annex 3 to that Regulation reinforce that obstacle by prohibiting the national football association to which the former club belongs from issuing an ITC in favour of the player where a dispute exists between that former club and that player arising from the early termination of an employment contract without mutual agreement.

43 Furthermore, the referring court notes that, according to FIFA and URBSFA, the various rules at issue in the main proceedings must be understood, generally, in light of the specificities of sport recognised by the TFEU. More specifically, in the view of those associations, even assuming that these rules hinder the free movement of workers or competition, they would be justified by reference to the legitimate objectives of, first, maintaining contractual stability, as well as the stability of football teams and, more broadly, preserving the integrity, regularity and proper conduct of sporting competitions.

44 For its part, the referring court takes the view, in essence, that it cannot be ruled out that, in particular when taken as a whole, the various rules at issue in the main proceedings hinder the free movement of workers and competition. It also states that, in the present case, there are serious, precise and consistent indications that the existence and application of those rules may have hindered the signing of Lassana Diarra by a new professional football club following the termination of his employment contract with Lokomotiv Moscow. Indeed, those rules would have made such a signing more difficult, as demonstrated in particular by the suspensive conditions included by Sporting du Pays de Charleroi in the offer it had sent to Lassana Diarra.

Questions referred for a preliminary ruling:

In the circumstances described, the Mons Court of Appeal decided to stay the proceedings and refer the following question to the Court of Justice for a preliminary ruling:

"Must Articles 45 and 101 TFEU be interpreted as precluding:

– the principle of joint and several liability between the player and the club wishing to sign him for the payment of compensation owed to the club with which the contract was terminated without just cause, as provided for in Article 17[, paragraph 2,] of the [RSTP], read in conjunction with the sporting sanctions provided for in Article 17[, paragraph 4,] of those regulations and [with] the financial sanctions provided for in Article 17[, paragraph 1, of those regulations];
– the possibility for [the national football association] on which the player's former club depends to refuse to issue the [ITC] required for the player to be signed by a new club, in the event of a dispute between that former club and the player (Article 9[, paragraph 1,] of those regulations and Article 8.2.7 of Annex 3 [thereto])?"

Proceedings before the Court of Justice of the European Union (Court of Justice of the EU (CJEU))

46 On 15 December 2022, following the adoption of the reference for a preliminary ruling, three associations representing professional footballers — the first at international level (the International Federation of Professional Footballers, hereinafter "FIFPro"), the second at European level (the International Federation of Professional Footballers – Europe Division, hereinafter "FIFPro Europe"), and the third at French level (the National Union of Professional Footballers (UNFP)) — jointly filed a request to intervene voluntarily in the main proceedings.

47 On 19 December 2022, the referring court informed the Court of the existence of this request for voluntary intervention.

48 When asked by the Registry of the Court whether the associations in question were to be regarded as new parties to the main proceedings by virtue of the mere fact of having filed a request for voluntary intervention, or whether any recognition of such status required a decision on its part, the referring court replied, in essence, that those associations were to be considered parties to the main proceedings under the applicable national procedural rules — namely Articles 15 and 16 of the Belgian Judicial Code — notwithstanding that it had not yet ruled on the admissibility of their request.

49 In light of that response, the request for a preliminary ruling was notified to those associations in accordance with Article 97(2) of the Rules of Procedure of the Court of Justice, and they were given a time limit within which to submit written observations.

50 After those written observations had been submitted, FIFA requested the Court, on 30 May 2023 and again on 12 June 2023, to reject or declare inadmissible those observations on the ground that the three associations in question could not be regarded as new parties to the main proceedings. The Registry of the Court informed FIFA that it had decided to take note of its request and that the matter would be dealt with by the Court in due course, while drawing FIFA's attention to the fact that, pending such consideration, the referring court had indicated to the Court, explicitly and clearly, that those associations were to be regarded as new parties to the main proceedings.

51 On 29 November 2023, the Registrar of the Court notified all parties to the main proceedings, as determined by the referring court, of the oral hearing scheduled for 18 January 2024. On that occasion, the Registrar reminded them that, following deliberations on 23 November 2023, the Second Chamber of the Court had decided that there were no grounds to declare inadmissible the written observations submitted by FIFPro, FIFPro Europe and the UNFP, nor to exclude those parties from the proceedings, while specifying that the reasons for that decision would be set out in the ruling concluding the proceedings.

52 In this regard, Article 96(1)(a) of the Rules of Procedure, read in conjunction with Article 23 of the Statute of the Court of Justice of the European Union, provides that, in the context of a preliminary ruling procedure, the parties to the main proceedings are among those authorised to submit observations to the Court.

53 Under Article 97(1) of the Rules of Procedure, the parties to the main proceedings are those designated as such by the referring court, in accordance with the applicable national procedural rules.

54 It is not for the Court of Justice to verify whether the referring court's decisions regarding such designation were made in accordance with the applicable national procedural rules. On the contrary, the Court is bound by those decisions for so long as they have not been set aside through the remedies available under national law (see, to that effect, ruling of 6 October 2015, Orizzonte Salute , C‑61/14, EU:C:2015:655, paragraph 33).

55 Accordingly, the Court of Justice is required, as a general rule, to treat as a party to the main proceedings any person designated as such by the referring court, whether that person held that status prior to the submission of the request for a preliminary ruling or acquired it subsequently.

56 By way of exception to that principle, party status in the main proceedings, within the meaning of Article 96(1) of the Rules of Procedure, read in conjunction with Article 23 of the Statute of the Court of Justice of the European Union, may be refused to a person where it is clear from the material in the case file before the Court of Justice that that person submitted to the referring court an application to intervene after the request for a preliminary ruling was made solely for the purpose of participating in the preliminary ruling procedure, and does not intend to play an active role in the national proceedings (see, to that effect, ruling of 6 October 2015, Orizzonte Salute, C‑61/14, EU:C:2015:655, paragraphs 35 and 36).

57 In the present case, as recalled in paragraph 48 of this ruling, the referring court explicitly, clearly and without reservation declared that FIFPro, FIFPro Europe and UNFP were to be regarded as new parties to the main proceedings, in accordance with the applicable national procedural rules. Furthermore, nothing in the case file indicates that the referring court's decision in this regard had been varied or set aside through the remedies available under national law.

58 Moreover, it does not clearly follow from the elements of the present case file that the three associations in question lodged their application to intervene before the referring court solely in order to participate in the preliminary ruling procedure and that they did not intend to play an active role in the national proceedings.

59 Accordingly, those associations were to be recognised as parties to the main proceedings within the meaning of Article 96 of the Rules of Procedure, and were therefore entitled to submit observations before the Court of Justice.

60 There was therefore no basis on which to declare their written observations inadmissible.

On admissibility

61 FIFA, URBSFA and the Greek, French and Hungarian Governments question the admissibility of the request for a preliminary ruling, or at least of certain aspects of the question referred to the Court of Justice.

62 The arguments they put forward in this regard are essentially threefold. First, the Greek and French Governments and URBSFA submit that the content of the referring court's order does not satisfy the requirements laid down in Article 94 of the Rules of Procedure, in that it does not set out in sufficient detail the legal and factual basis on which the referring court is seeking guidance from the Court of Justice, nor the reasons why it considers it necessary to refer a preliminary question on the interpretation of Articles 45 TFEU or 101 TFEU in order to resolve the main dispute. Second, FIFA and URBSFA argue that the request for a preliminary ruling is hypothetical and abstract in nature, on the grounds that there is no genuine dispute whose resolution would require any interpretive decision by the Court. This would follow, on the one hand, from the fact that the RSTP rules on employment contracts and transfers ultimately had no adverse impact on Lassana Diarra, and, on the other hand, from the circumstance that the main proceedings were artificially constructed by Lassana Diarra, who never in fact intended to join Sporting du Pays de Charleroi. Third, the French and Hungarian Governments, as well as FIFA and URBSFA, contend that the main proceedings lack a cross-border dimension within the meaning of the TFEU, or — according to FIFA and URBSFA — even have an "external" character, and therefore cannot fall within the scope of Article 45 TFEU. Indeed, the alleged interference with the freedom of movement of workers of which Lassana Diarra claims to be a victim would consist of an obstacle to his professional mobility between a third country (Russia), where Lokomotiv Moscow is based, and a Member State (Belgium), where Sporting du Pays de Charleroi is established.

1 The content of the referring court's decision

63 The preliminary ruling procedure established by Article 267 TFEU constitutes an instrument of cooperation between the Court of Justice and national courts, through which the former provides the latter with the elements of interpretation of EU law that they require in order to resolve the disputes before them. by virtue of settled case-law, now reflected in Article 94(a) and (b) of the Rules of Procedure, the need to arrive at an interpretation of EU law that is of genuine use to the referring court requires that court to define the factual and legal framework within which the questions it raises are set, or at least to explain the factual assumptions on which those questions are based. Furthermore, it is essential, as provided in Article 94(c) of the Rules of Procedure, that the request for a preliminary ruling set out the reasons that led the referring court to question the interpretation or validity of certain provisions of EU law, as well as the connection it identifies between those provisions and the national legislation applicable to the main proceedings. These requirements are particularly important in areas characterised by complex factual and legal situations, such as the field of competition (ruling of 21 December 2023, European Superleague Company , C‑333/21, EU:C:2023:1011, paragraph 59 and the case-law cited).

64 Moreover, the information contained in a request for a preliminary ruling must not only enable the Court of Justice to provide useful answers, but must also afford the governments of the Member States and other interested parties the opportunity to submit observations in accordance with Article 23 of the Statute of the Court of Justice of the European Union (ruling of 21 December 2023, European Superleague Company , C‑333/21, EU:C:2023:1011, paragraph 60 and the case-law cited).

65 In the present case, the request for a preliminary ruling satisfies the requirements set out in the two preceding paragraphs of this ruling. Indeed, the referring court's decision sets out in detail the factual and legal framework in which the question referred to the Court of Justice arises. Furthermore, that decision explains, concisely but clearly, the factual and legal reasons that led the referring court to consider it necessary to raise this question, as well as the connection it identifies, in its view, between Articles 45 and 101 TFEU in the main proceedings.

66 Furthermore, the content of the written observations submitted to the Court of Justice highlights the fact that their authors had no difficulty in understanding the factual and legal framework within which the question referred by the referring court is set, in order to grasp the meaning and scope of the factual findings underpinning it, to understand the reasons why the referring court considered it necessary to make the reference, and, ultimately, to adopt a comprehensive and useful position on the matter.

2 The reality of the dispute and the relevance of the question referred to the Court

67 It is for the referring court — the sole national court seised of the main proceedings, which must bear responsibility for the judicial decision to be given — to assess, in the light of the particular circumstances of the present case, both the need for a preliminary ruling in order to be able to give judgment and the relevance of the questions it refers to the Court. It follows that questions referred by national courts enjoy a presumption of relevance, and that the Court of Justice may refuse to rule on them only where it is quite obvious that the interpretation sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to those questions (ruling of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 64 and the case-law cited).

68 In the present case, the referring court's findings summarised in paragraphs 22 to 35, 39 and 41 to 44 of this ruling demonstrate the genuine nature of the main proceedings. Moreover, those findings show that the fact that the referring court has asked the Court of Justice to interpret Articles 45 TFEU and 101 TFEU is not manifestly unconnected with the actual facts and subject matter of the present dispute.

69 Indeed, those findings disclose, first, that the referring court is dealing, both on appeal and in respect of a civil wrong, with a dispute concerning the real and concrete question of whether, as was found at first instance, Lassana Diarra is entitled to claim compensation for the harm he alleges he suffered as a result of being prevented from pursuing his activity as a professional footballer during the 2014/2015 season, owing to wrongful conduct on the part of FIFA and URBSFA consisting in their application of Article 17 of the RSTP, Article 9(1) of that regulation, and Article 8.2.7 of Annex 3 to that regulation. The referring court notes in this regard that, in its view, there are serious, precise and consistent indications that the existence and application of those various rules may have hindered the signing of Lassana Diarra by a new professional football club following the termination of the employment contract binding him to Lokomotiv Moscow. Secondly, Lassana Diarra's claim and the first-instance ruling that upheld it in principle are based both on an interpretation and on an application of Articles 45 TFEU and 101 TFEU. Thirdly, the referring court specifies that, having regard to the subject matter of the dispute before it, it will need to rule, in particular, on whether the conduct of FIFA and URBSFA must be characterised as unlawful on the grounds that it infringes Articles 45 and 101 TFEU. Fourthly, that same court found, in the light of the facts before it, that, contrary to what FIFA and URBSFA contend, the main proceedings cannot be regarded as artificial.

3 The cross-border dimension of the main proceedings

70 The provisions of the TFEU relating to the free movement of workers, freedom of establishment, freedom to provide services and free movement of capital do not apply to situations where all the elements are confined to a single Member State, except in certain specific cases where the referring court's decision highlights the existence of concrete elements establishing that the preliminary ruling sought is necessary for the resolution of the dispute by reason of a link between the subject matter or circumstances of the present case and Articles 45, 49, 56 or 63 TFEU, as required by Article 94 of the Rules of Procedure (see, to that effect, ruling of 21 December 2023, Royal Antwerp Football Club, C‑680/21, EU:C:2023:1010, paragraphs 38 and 39, and the case-law cited).

71 In the present case, the request for a preliminary ruling cannot be regarded as inadmissible in so far as it concerns the interpretation of Article 45 TFEU, relating to the free movement of workers, on the ground that that article has no bearing on the main proceedings given their lack of a cross-border dimension or, a fortiori, their purely "internal" character in the sense in which URBSFA uses that term.

72 Indeed, the Court of Appeal, Mons indicates in its referring decision that Lassana Diarra is resident and has his centre of interests in Paris. It further notes that the claim he brought seeks compensation for the harm he considers himself to have suffered during the 2014/2015 season, having seen his professional mobility towards other Member States impeded — in particular towards Belgium, where Sporting du Pays de Charleroi had submitted a conditional offer of engagement. The referring court thus makes it clear in its request for a preliminary ruling that the factual and legal situation characterising the main proceedings has a cross-border dimension, in that a person resident in France complains of having been obstructed, following the termination of the employment contract binding him to a professional football club established in a third State, in his demonstrated wish to exercise his freedom of movement to other Member States — in particular Belgium — by reason of the existence and actual or potential application, in that regard, of certain rules adopted by FIFA to regulate the status and international transfers of professional footballers.

73 From the foregoing considerations, it follows that none of the arguments referred to in paragraph 62 of this ruling can be accepted and that, consequently, the request for a preliminary ruling is admissible in its entirety.

On the preliminary question

By its preliminary question, the referring court asks, in essence, whether Articles 45 TFEU and 101 TFEU must be interpreted as precluding rules adopted by a private-law association whose aim is, in particular, to regulate, organise and oversee football at world level, and which provide:

– first, that a professional player who is party to an employment contract and is found to have terminated that contract without just cause, together with the new club that signs him following that termination, are jointly and severally liable for payment of the compensation owed to the former club for which the player worked, to be determined on the basis of the various criteria set out in those rules;
– second, that, where the registration of the professional player occurs during a protected period under 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 demonstrates that it did not induce the player to breach that contract; and
– third, that the existence of a dispute relating to that breach of contract prevents the national football association of which the former club is a member from issuing the International Transfer Certificate (ITC) required for the player's registration with the new club, with the consequence that the player is unable to take part in football competitions on behalf of that new club.

A.- Introductory remarks

75 By way of preliminary observation, it should be recalled, first, that, insofar as the practice of a sport constitutes an economic activity, it falls within the scope of the provisions of EU law applicable to such activity (ruling of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 83 and the case-law cited).

76 Only certain specific rules which, on the one hand, were adopted exclusively for reasons of a non-economic nature and, on the other hand, concern matters of purely sporting interest are to be regarded as falling outside the scope of any economic activity. This is the case, in particular, of rules relating to the exclusion of foreign players from the composition of teams participating in competitions between representative national teams, or to the establishment of selection criteria used to choose athletes competing in individual events (ruling of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 84 and the case-law cited).

77 With the exception of those specific rules, the rules adopted by sports associations to regulate the employment, provision of services, or deployment of professional or semi-professional players and, more broadly, rules which, even if not formally governing such employment, provision of services or deployment, have a direct impact on them, may fall within the scope of Articles 45, 49 and 56 TFEU (ruling of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraphs 85 and 86, and the case-law cited therein).

78 Likewise, the rules adopted by such associations and, more broadly, the conduct of those associations are governed by the provisions of the TFEU on competition law where the conditions for the application of those provisions are satisfied (ruling of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 87 and the case-law cited therein).

79 However, the rules at issue in the main proceedings do not fall within those to which the exception referred to in paragraph 76 of this ruling could apply — an exception which the Court of Justice has consistently held must be confined to its specific purpose and cannot be invoked to exclude an entire sporting activity from the scope of the provisions of the TFEU on EU economic law (ruling of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 89 and the case-law cited therein).

80 Indeed, the rules at issue in the main proceedings clearly have, on the one hand, a direct bearing on the work of players. The rules referred to in paragraphs 13 to 17 of this ruling are designed to regulate the employment contracts of professional players, which define their working conditions and, indirectly, the economic activity to which such work may give rise. As regards the rules referred to in paragraphs 10, 19 and 20 of this ruling, these must be considered to directly affect the work of players insofar as they make players' participation in competitions subject to certain conditions — participation being the essential object of their economic activity (see, to that effect, the ruling of 21 December 2023, Royal Antwerp Football Club, C‑680/21, EU:C:2023:1010, paragraphs 59 and 60, and the case-law cited therein).

81 Furthermore, since squad composition constitutes one of the essential parameters of the competitions in which professional football clubs participate, and since those competitions give rise to economic activity, rules such as those at issue in the main proceedings — whether relating to employment contracts or to the transfer of players — must also be regarded as having a direct impact on the conditions under which that economic activity is carried out, as well as on competition between the professional football clubs engaged in that activity (see, by analogy, the ruling of 21 December 2023, Royal Antwerp Football Club, C‑680/21, EU:C:2023:1010, paragraph 61).

82 Accordingly, the rules at issue in the main proceedings fall within the scope of Articles 45 TFEU and 101 TFEU.

83 Secondly, given that these two provisions of the TFEU each pursue their own objective, lay down conditions of application specific to them, are not mutually exclusive in their application, and — where a breach is established — do not give rise to the same consequences, the Court of Justice must interpret them in turn, as the referring court requests.

84 Thirdly and finally, account may be taken, among other factors, of the undeniable specific characteristics of sporting activity which, although they affect amateur sport in particular, may also be present where sport is pursued as an economic activity. Where relevant, those characteristics may be considered in the application of Articles 45 TFEU and 101 TFEU, it being noted, however, that such consideration can only take place within the framework of, and in compliance with, the conditions of application laid down by each of those articles (ruling of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraphs 103 and 104, and the case-law cited).

85 In particular, where it is alleged that a rule adopted by a sports association constitutes an obstacle to the free movement of workers or an agreement restrictive of competition, the classification of that rule as such an obstacle or as a competition-restricting agreement must, in any event, be based on a concrete examination of the content of that rule in the actual context in which it is intended to apply (ruling of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 105 and the case-law cited).

b.- On the preliminary reference concerning Article 45 TFEU

1 On the existence of an obstacle to the free movement of workers

86 Article 45 TFEU, which has direct effect, precludes any measure, whether based on nationality or applicable regardless of nationality, that is liable to place EU nationals at a disadvantage when they wish to pursue an economic activity in the territory of a Member State other than their Member State of origin, by preventing or deterring them from leaving that State (ruling of 21 December 2023, Royal Antwerp Football Club, C‑680/21, EU:C:2023:1010, paragraph 136 and the case-law cited).

87 In the present case, it is apparent from the terms of the question referred by the national court and from the grounds on which it is based that the conduct in respect of which that court asks the Court of Justice to interpret Article 45 TFEU consists in the fact that FIFA adopted and then applied, with respect to Lass Diarra, based in Paris, and to the professional football clubs established in other Member States that could, or indeed wished to, sign him following the termination of his employment contract with Lokomotiv Moscow — or at least exposed that player and those clubs to the risk of having applied to them — various provisions of the RSTP, namely those set out respectively in Article 17(1), (2) and (4) of that regulation, Article 9(1) of that regulation, and Article 8.2.7 of Annex 3 to that regulation.

88 Article 17(2) of the RSTP provides that the professional player whose employment contract has been terminated without just cause and the new club that signs him following that termination shall be jointly and severally liable for the payment of compensation owed to the former club for which that player worked. As regards that compensation, Article 17(1) of the RSTP provides that, where the employment contract makes no provision for it, it shall be calculated by taking into account the law in force in the country concerned, the specificity of sport, and any other objective criteria, including in particular a criterion relating to the remuneration and other benefits due to the player under the terminated employment contract and/or the new employment contract, a criterion relating to the remaining duration of the terminated employment contract up to a maximum of five years, as well as a criterion relating to the costs and expenses incurred or paid by the former club, amortised over the contractual period.

89 Furthermore, under Article 17(4) of the RSTP, where a player is signed during a protected period under the extinguished employment contract — corresponding to the first two or three seasons or years covered by that contract, depending on the player's age — the new club incurs a sporting sanction. In this regard, that provision specifies, firstly, that the sporting sanction in question is additional to the obligation to pay compensation as referred to in Article 17(1) and (2) of the RSTP. Secondly, the sporting sanction applies to any new club found liable for breach of an employment contract or for inducing the termination of such a contract during the protected period. Thirdly, any new club that signs an employment contract with a player who has terminated his previous employment contract without just cause shall be presumed, unless proven otherwise, to have induced that player to do so. Fourthly, the sporting sanction in question consists of a ban on the new club registering new players, whether at national or international level, for two full and consecutive registration periods.

90 Lastly, it follows in particular from Article 9(1) of the RSTP and Article 8.2.7 of Annex 3 to those Regulations that the existence of a dispute arising from a breach of contract without just cause prevents the national football association of which the former club is a member from issuing the International Transfer Certificate (ITC) required for the registration of the player concerned at the new club, with the consequence that the player is unable to participate in football competitions on behalf of that new club.

91 As the Advocate General noted in substance in points 43 and 44 of his Opinion, this body of rules is liable to disadvantage professional footballers who are resident or work in their home Member State and who wish to pursue their professional economic activity on behalf of a new club established in the territory of another Member State, by unilaterally terminating — or having already unilaterally terminated — their employment contract with their former club on grounds which they allege, or risk alleging, rightly or wrongly, do not constitute just cause.

92 More specifically, the rules — which are admittedly default rules — governing the calculation of the compensation owed by any player to his former club in the event of termination of an employment contract without just cause, as laid down in Article 17(1) of the RSTP; the rule making any new club that signs such a player jointly and severally liable for the payment of that compensation, as set out in Article 17(2) of those Regulations; and the rebuttable presumption of inducement to terminate, together with the ban on registering new players applicable to new clubs under Article 17(4) of those Regulations — may to a considerable degree deprive any player in such a situation, either in practice, as in the case of Lassana Diarra, or at least potentially, of the prospect of receiving firm and unconditional offers of engagement from clubs established in other Member States, the acceptance of which would lead him to leave his home Member State by exercising his freedom of movement. Indeed, the existence of these rules and their combined effect result in exposing those clubs to significant legal risks, unpredictable and potentially very substantial financial risks, and considerable sporting risks which, taken together, are clearly capable of deterring them from signing such players.

93 Furthermore, rules that prohibit, in a general and automatic manner — save in exceptional circumstances — the issuance of the ITC (International Transfer Certificate) required to register professional players with their new clubs, where a dispute exists between those players and their former clubs arising from a failure to reach mutual agreement on the early termination of the employment contract, as provided for in Article 9(1) of the RSTP and in Article 8.2.7 of Annex 3 to that Regulation, may prevent those players from pursuing their economic activity in any Member State other than their Member State of origin, thereby depriving them of the possibility of joining a club established in one of those other Member States. Moreover, those rules apply specifically in cases of cross-border movement of players, to the exclusion of any movement within a single Member State, as is also apparent from Article 1, paragraph 1, of that Regulation. Thus, in the present case, it is clear from the findings set out in the referring court's decision that Sporting du Pays de Charleroi made its offer of employment sent to Lass Diarra on 19 February 2015 expressly conditional on having the certainty of being able to register and field him in Belgium — a certainty that Lass Diarra sought to obtain from FIFA and the URBSFA, both of which declared that they were unable to provide it given the existence of a dispute between him and Lokomotiv Moscow, a dispute on which the PSC did not rule until several months later.

94 Accordingly, the rules at issue in the main proceedings are capable of impeding the free movement of workers.

2. Whether a possible justification exists

95 Measures of non-State origin may nonetheless be permissible, even if they are capable of impeding the freedom of movement enshrined in the TFEU, provided it is established,

first, that their adoption pursues a legitimate objective of general interest compatible with the Treaty and, consequently, of a character other than purely economic; and
second, that they comply with the principle of proportionality, meaning that they are capable of ensuring the attainment of that objective and do not go beyond what is necessary to achieve it.

With regard more specifically to the requirement of suitability of such measures, it should be recalled that measures can only be considered adequate to ensure the attainment of the objective invoked if they genuinely reflect a concern to achieve that objective in a consistent and systematic manner. (judgments of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 251, and of 21 December 2023, Royal Antwerp Football Club , C‑680/21, EU:C:2023:1010, paragraph 141 and the case-law cited).

96 Just as in the case of measures of State origin, the author of these non-State measures bears the burden of demonstrating that those two cumulative conditions are satisfied (judgments of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 252, and of 21 December 2023, Royal Antwerp Football Club, C‑680/21, EU:C:2023:1010, paragraph 142 and the case-law cited).

97 In the present case, it will ultimately be for the referring court to determine whether the RSTP rules at issue in the main proceedings satisfy those requirements, in the light of the arguments and evidence submitted by the parties. That said, the Court is in a position to provide that court, on the basis of the materials in the file before it and subject to verification by that court, with the following guidance.

a) On the pursuit of a legitimate objective in the general interest

98 FIFA, together with URBSFA, submits that the RSTP rules at issue in the main proceedings pursue several objectives, namely:

first, maintaining contractual stability and squad stability for professional football clubs; and
secondly, preserving, more broadly, the integrity, regularity and proper conduct of club football competitions; and
thirdly, protecting workers who are professional footballers.

All of these distinct objectives are, it is argued, legitimate from the standpoint of the general interest.

Protection of workers: On this point, it should be noted first of all that the protection of workers does not fall within FIFA's objects as defined by its statutes, and furthermore that public authorities have not entrusted this private-law association with any particular mission in this area. That being so, there is no need to consider whether, in those circumstances, the association is entitled to invoke the pursuit of such an objective, since it is sufficient, in any event, to observe that it is not apparent in what way the adoption or application of the RSTP rules at issue in the main proceedings, as characterised in paragraph 74 of this ruling, could contribute to the protection of professional footballers.

Ensuring the regularity of sporting competitions: Secondly, having regard to the objectives set by FIFA, as specified in Article 2 of its statutes and recalled in paragraph 3 of this ruling, it should be noted at the outset that the objective of ensuring the regularity of sporting competitions constitutes a legitimate aim of general interest that may be pursued by a sporting association, for example by adopting rules setting transfer windows in order to prevent late transfers that could significantly alter the sporting value of a given team during a competition and, in so doing, call into question the comparability of results between the various teams entered in that competition and, consequently, the proper conduct of the competition as a whole (see, to that effect, the ruling of 13 April 2000, Lehtonen and Castors Braine (ruling C‑176/96, EU:C:2000:201), paragraphs 53 and 54).

Furthermore, that objective is of particular importance in the case of football, given the essential role assigned to sporting merit in the conduct of competitions organised at both European and national level. Indeed, that essential role can only be guaranteed if all the many teams taking part compete under homogeneous regulatory and technical conditions and if a balance is maintained between clubs that ensures a degree of equality of opportunity (ruling of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 143 and the case-law cited).

102 Finally, given that squad composition is one of the essential parameters of the competitions in which clubs compete (ruling of 21 December 2023, Royal Antwerp Football Club, C‑680/21, EU:C:2023:1010, paragraph 61), this objective may justify the adoption not only of rules relating, inter alia, to player transfer windows during the competition season, as referred to in paragraph 100 of this ruling, but also, in principle and without prejudice to their specific content, of rules designed to ensure the maintenance of a certain degree of stability in club membership, which provides the foundation for the composition of the squads that clubs may field during inter-club football competitions. The maintenance of a certain degree of stability in those figures, and therefore of a degree of continuity in the contracts connected with them, should not therefore be regarded as a legitimate objective of general interest in itself, but rather as one of the possible means of contributing to the attainment of the legitimate objective of general interest consisting in ensuring the regularity of inter-club football competitions.

b) On compliance with the principle of proportionality

103 As follows from the preceding section of this ruling and as the Advocate General noted at point 65 of his Opinion, the FIFA RSTP rules at issue in the main proceedings, as characterised in paragraph 74 of this ruling and recalled in paragraphs 87 to 90 thereof, may all be considered, at first sight and without prejudice to the checks to be carried out by the referring court, to be suitable for ensuring the attainment of the objective of guaranteeing the regularity of inter-club football competitions, each of them contributing, in its own way, to maintaining a certain degree of stability in the membership of all professional football clubs that may participate in those competitions.

104 On the other hand, without prejudice to the checks to be carried out by the referring court, those various rules appear, in several respects, to go — and in some cases to go considerably — beyond what is necessary to achieve that objective. This is all the more so given that they are intended to apply, to a large extent, in combination with one another and, in the case of some of them, over a substantial period of time, to players whose careers are, moreover, relatively short — a situation that risks seriously impeding those players' professional development or even leading some of them to bring their careers to a premature end.

105 Criteria for quantifying compensation: First, this is the case of Article 17(1) of the RSTP, in that it sets out the various criteria for calculating the compensation owed by the player in the event of unilateral termination of the employment contract occurring "without just cause" — an expression that is, moreover, not precisely defined within the Regulations themselves.

In particular, the first criterion — which consists, in essence, of the possibility of taking into account the "law in force in the country concerned" — does not guarantee effective compliance with that law. On the contrary, the official commentary on the RSTP published by FIFA clarifies that this first criterion has, in practice, almost never been applied, with the DRC applying essentially the rules established by the association itself and, on a purely supplementary basis, Swiss law. Such a lack of genuine consideration of — and therefore effective respect for — the law in force in the country concerned goes clearly beyond what may be necessary to maintain a certain degree of stability in club membership with a view to ensuring the regularity of inter-club football competitions. As regards the second criterion expressly provided for by this provision, relating to the "specificity of sport", this refers to a general notion, without linking it to a precise definition that would make it possible to understand in what capacity and in what manner this criterion may influence the calculation of the compensation owed by the player. Consequently, while this criterion is presented as an "objective criterion", it is in reality open to discretionary — and therefore unpredictable and barely reviewable — application. The adoption of a criterion with such characteristics and such consequences cannot be regarded as necessary to ensure the regularity of inter-club football competitions.

As for the other criteria expressly provided for by that provision, while at first glance they appear more objective and verifiable than the foregoing, they seem to go far beyond what is necessary for the same purpose. Indeed, on the one hand, the remuneration and other benefits due to the player concerned under the employment contract subsequently concluded by him with a new club relate to an employment relationship that post-dates the terminated employment relationship, meaning that these elements must be regarded as extraneous to that earlier relationship and to its cost (see, by analogy, the ruling of 16 March 2010, Olympique Lyonnais , C‑325/08, EU:C:2010:143, paragraph 50). On the other hand, with regard to all costs and expenses borne by the former club in connection with the transfer of that player to it, amortised over the contractual period, it should be noted that — regardless of whether this element relates essentially to a prior contractual employment relationship — its consideration appears particularly excessive, since it may allow potentially considerable financial burdens to be passed on to the player, burdens that were, a priori, negotiated exclusively by other parties in their own interests, such as the clubs involved in the transfer or third parties who intervened in that context. Furthermore, it is clear that such compensation criteria appear to be designed more to protect the financial interests of clubs within the specific economic context of player transfers between them than to ensure the supposed smooth running of sporting competitions — as is further demonstrated by the manner in which those criteria are interpreted and applied by the DRC and the CAS, as evidenced by certain decisions of those bodies contained in the case file before the Court.

108 Joint and several liability of the new club for payment of compensation: Secondly, this is also, at first sight, the case with Article 17(2) of the RSTP, insofar as it provides, as a matter of principle and therefore without taking into account, in accordance with the principle of proportionality, the specific circumstances of each individual case (see, to that effect, the ruling of 4 October 2018, Link Logistik N&N , C‑384/17, EU:C:2018:810, paragraph 45), and in particular the actual conduct of the new club that engages the player, that such club is jointly and severally liable for the payment of compensation owed by that player to his former club in the event of unilateral termination of the contract without just cause — compensation which is, moreover, determined according to criteria that present the shortcomings highlighted in paragraphs 106 and 107 of this ruling. Furthermore, whilst it must be acknowledged that FIFA has argued that this provision is not applied systematically and, in particular, does not apply where a player who has terminated his previous contract without just cause signs a new contract after the expiry date of that previous contract, the fact remains that, even assuming that such a situation were established, Article 17(2) of the RSTP makes no provision for such non-application and therefore does not afford the necessary legal certainty in that regard.

109 Sporting sanction on the new club: Thirdly, the same is true of Article 17(4) of the RSTP, to the extent that, in addition to being jointly and severally liable for the payment of such compensation, the new club is presumed, subject to evidence to the contrary, to have induced the player to breach his contract without just cause and, where that player is engaged during the protected period of the contract binding him to his former club, that new club consequently incurs a sporting sanction consisting of a general ban on registering new players for two full and consecutive registration periods.

Indeed, such a sporting sanction — which the bodies responsible for imposing it have no power to adapt on a case-by-case basis according to specific criteria or circumstances — appears manifestly disproportionate, having regard to its nature and consequences, in relation to the breach attributed to the new club concerned. Furthermore, that breach is attributed to the new club on the basis of a presumption whose justification does not appear to be established. It is true that FIFA argued that the existence of this presumption was explained by the difficulties that a player's former club might face if required to demonstrate that the player's new club had induced him to terminate prematurely and without just cause the contract binding him to that former club. However, it must be noted that, whilst such an argument is, at first sight, capable of justifying, in principle, recourse to a presumption, it does not, nonetheless, justify the presumption at issue in the present case, which operates automatically — that is to say, without being subject to any condition that would allow account to be taken, even in a limited way, of the relevant circumstances of the specific case, such as, for example, requiring at the very least the former club to adduce sufficient evidence to support the conclusion that the new club encouraged the player to leave.

111 Furthermore, whilst an association such as FIFA may provide for the imposition of sanctions in the event of non-compliance with the rules it adopts, provided that those rules and the sanctions designed to ensure compliance with them are justified by the pursuit of a legitimate objective in the general interest, such sanctions may only be permitted on condition that their determination is governed by transparent, objective, non-discriminatory and proportionate criteria (see, to that effect, ruling of 21 December 2023, European Superleague Company , C‑333/21, EU:C:2023:1011, paragraph 257). The latter requirement entails, in particular, that the specific circumstances of the individual case be taken into account when determining the amount and duration of the sanction, as follows from the case-law cited in paragraph 108 of this ruling. Moreover, those criteria must be subject to effective judicial review.

112 Prohibition on issuing the ITC (International Transfer Certificate): Fourth and finally, the same applies to Article 8.2.7 of Appendix 3 of the RSTP, in that it prohibits the former association, in a general and automatic manner — save in exceptional circumstances — from issuing an ITC where the former club and the player are in dispute over a contractual conflict arising from a failure to reach mutual agreement on the early termination of the employment contract. Indeed, a provision of this kind, the application of which may prevent the player concerned from pursuing his professional activity, as well as preventing the new club from fielding that player solely on the grounds that a dispute exists between that player and his former club regarding a breach of contract that may lack just cause, manifestly infringes the principle of proportionality, in particular because its application disregards the specific circumstances of each individual case — notably the factual context in which the breach of contract occurred, the respective conduct of the player in question and his former club, and the role played, or not played, by the new club — all of which nonetheless ultimately bears on the prohibition on registering that player and fielding him in competitions.

113 Consequently, the prohibition at issue cannot be justified by any purported aim of ensuring the smooth running of sporting competitions. Furthermore, this conclusion is not undermined by FIFA's argument that, where a registration request is submitted by the new national football association to which a player belongs, or where a request is submitted by the player himself, its services will immediately and automatically carry out a provisional registration of that player. Indeed, the provision at issue contains no reference to such provisional registration and, a fortiori, does not require it to be carried out.

Conclusion

114 In light of all the foregoing considerations, the answer to the reference for a preliminary ruling, insofar as it concerns the interpretation of Article 45 TFEU, is that that article must be interpreted as meaning that it precludes rules adopted by a private-law association whose objectives include, in particular, regulating, organising and controlling football at world level, and which provide:

first, that a professional player party to an employment contract who is found to have terminated that contract without just cause, and the new club that signs him following that termination, are jointly and severally liable for payment of the compensation owed to the first club for which the player worked, and which is to be determined on the basis of criteria that are at times imprecise or discretionary, at times lacking any objective connection with the employment relationship in question, and at times disproportionate;
second, that, where the professional player's registration with the new club takes place during a protected period under the terminated employment contract, the new club is subject to a sporting sanction consisting of a ban on registering new players for a specified period, unless it demonstrates that it did not induce the player to breach that contract; and
third, that the existence of a dispute relating to that breach of contract prevents the national football association of which the former club is a member from issuing the ITC required for the player's registration with the new club, with the consequence that that player may not participate in football competitions on behalf of that new club, unless it is established that those rules, as interpreted and applied within the territory of the Union, do not go beyond what is necessary to achieve the objective of ensuring the regularity of club football competitions by maintaining a degree of stability among the members of professional football clubs.

c.- The reference for a preliminary ruling as regards the interpretation of Article 101 TFEU

1.- Article 101(1) TFEU

115 Article 101(1) TFEU prohibits all agreements between undertakings, all decisions by associations of undertakings and all concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market.

116 As is clear from settled case-law of the Court of Justice, the application of this provision in any given case requires a number of conditions to be met.

a) On the concepts of "undertakings" and "associations of undertakings"

117 Article 101(1) TFEU applies not only to any entity that carries on an economic activity and must, as such, be characterised as an "company", regardless of its legal form or the way in which it is financed — including entities constituted in the form of associations whose object, under their statutes, is the organisation and control of a particular sport, in so far as those entities carry on an economic activity in relation to that sport — but also to entities which, although not necessarily undertakings themselves, may be characterised as "associations of undertakings" (ruling of 21 December 2023, Royal Antwerp Football Club, C‑680/21, EU:C:2023:1010, paragraphs 76 to 78 and the case-law cited).

118 In the present case, having regard to the subject matter of the main proceedings and the referring court's findings, Article 101(1) TFEU must be regarded as applicable to FIFA as an association whose members are national football associations that may themselves be characterised as "undertakings" in so far as they carry on an economic activity connected with the organisation and commercial exploitation of inter-club football competitions at national level and the exploitation of rights related thereto, or that themselves have as members or affiliates entities that may be so characterised, such as football clubs (judgments of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 115, and of 21 December 2023, Royal Antwerp Football Club, C‑680/21, EU:C:2023:1010, paragraph 79).

b) On the concept of a "decision by an association of undertakings"

119 The application of Article 101(1) TFEU in the context of an entity such as FIFA requires the existence of an "agreement", a "concerted practice" or a "decision by an association of undertakings" to be established — each of which may be of different natures and may take different forms. In particular, a decision by an association consisting in the adoption or implementation of rules that directly affect the conditions under which the economic activity of undertakings that are directly or indirectly its members is carried on may constitute a "decision by an association of undertakings" within the meaning of that provision (ruling of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 118 and the case-law cited).

120 In the present case, as follows from the statements contained in the referring court's order for reference and from paragraph 81 of this ruling, the referring court asks the Court of Justice to interpret Article 101(1) TFEU in the light of decisions of this type — namely, those consisting, on FIFA's part, in having adopted and applying, or being in a position to apply, a set of rules governing employment contracts and player transfers.

121 Decisions of associations of undertakings of that kind therefore fall within the scope of Article 101(1) TFEU.

c) The concept of "affecting trade between Member States"

122 The application of Article 101(1) TFEU in the presence of decisions of associations of undertakings of this kind requires establishing, with a sufficient degree of probability, that those decisions "may affect trade between Member States" in an appreciable manner, by exerting a direct or indirect, actual or potential influence on trade flows, with the risk of hindering the creation or functioning of the internal market. It should be noted that this condition may be considered satisfied where conduct covers the entire territory of a Member State (ruling of 21 December 2023, Royal Antwerp Football Club, C‑680/21, EU:C:2023:1010, paragraph 43 and the case-law cited).

123 In the present case, that condition is clearly satisfied, given that, as specified in Article 1, ^paragraph 1, of the RSTP, the rules laid down by that Regulation have a "worldwide" geographical scope.

d) The concept of conduct having as its "object" or "effect" the restriction of competition

124 In order to find, in a given case, that an agreement, a decision by an association of undertakings or a concerted practice falls within the prohibition laid down in Article 101(1) TFEU, it is necessary, in accordance with the terms of that provision, to demonstrate that the conduct in question has as its object the prevention, restriction or distortion of competition, or that it has such an effect (ruling of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 158 and the case-law cited).

125 To that end, it is necessary, first, to examine the purpose of the conduct in question. If, at the conclusion of that examination, the conduct is found to have an anti-competitive object, there will be no need to examine its effects on competition. It is therefore only where the conduct cannot be regarded as having such an anti-competitive object that it is necessary to proceed, at a second stage, to examine its effects (ruling of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 159 and the case-law cited).

126 As is clear from the settled case-law of the Court of Justice, the concept of anti-competitive "object", although it does not constitute an exception to the concept of anti-competitive "effect", must be interpreted strictly (ruling of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 161 and the case-law cited).

127 Accordingly, that concept must be understood as referring exclusively to certain types of coordination between undertakings which reveal a sufficient degree of harm to competition to make it unnecessary to examine their effects. Indeed, certain forms of coordination between undertakings can be regarded, by their very nature, as being harmful to the normal functioning of competition (ruling of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 162 and the case-law cited).

128 This applies, in particular, to certain types of horizontal agreements other than cartels — for example, those leading to the exclusion from the market of competing undertakings — and even to certain types of decisions by associations of undertakings (ruling of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 164 and the case-law cited).

129 As is clear from Article 101(1)(a) and (c) TFEU, which refers in particular to the fixing of "purchase or selling prices" and the sharing of "markets or sources of supply", such cartels, such horizontal agreements and such decisions by associations of undertakings may relate not only to the products or services marketed by the undertakings concerned and, therefore, to supply, but also to the resources of any kind that those undertakings require in order to produce those products or services, and are therefore subject to claim. Thus, the collusive conduct of those undertakings may consist, for example, in sharing suppliers, in using their collective market power to fix the price at which they purchase their inputs, or even, as the Court has already noted, in limiting or controlling what may, in certain sectors or on certain markets, constitute an essential parameter of competition — namely the recruitment of highly skilled workers, such as players already trained in the professional football sector (see, to that effect, ruling of 21 December 2023, Royal Antwerp Football Club, C‑680/21, EU:C:2023:1010, paragraphs 107, 109 and 110).

130 In order to determine, in a given case, whether an agreement, a decision by an association of undertakings or a concerted practice is, by its very nature, sufficiently harmful to competition to be considered as having the object of preventing, restricting or distorting it, it is necessary to examine, first, the content of the agreement, decision or practice in question, second, the economic and legal context in which it is set and, third, the objectives it seeks to achieve (ruling of 21 December 2023, European Superleague Company (C‑333/21, EU:C:2023:1011), paragraph 165 and the case-law cited).

131 In this regard, first, as concerns the economic and legal context in which the conduct in question takes place, account must be taken of the nature of the products or services concerned, as well as the actual conditions characterising the structure and functioning of the sector or markets in question. Moreover, it is not at all necessary to examine, let alone to establish, the effects of that conduct on competition, whether actual or potential, negative or positive (judgments of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 166 and the case-law cited, and of 27 June 2024, Commission v Server and Others, C‑176/19 P, EU:C:2024:549, paragraphs 288 and 453).

132 Next, as regards the objectives pursued by the conduct in question, it is necessary to identify the objective aims which that conduct seeks to achieve in relation to competition. Furthermore, the fact that the undertakings involved acted without any subjective intention to prevent, restrict or distort competition, and the fact that they pursued certain legitimate objectives, are not decisive for the purposes of applying Article 101(1) TFEU (ruling of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 167 and the case-law cited).

133 Finally, taking all of the elements referred to in the three preceding paragraphs of this ruling into account must, in any event, reveal the precise reasons why the conduct in question displays a sufficient degree of harmfulness with respect to competition to justify a finding that its object is to prevent, restrict or distort competition (ruling of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 168 and the case-law cited).

134 In the present case, with regard first to the content of the RSTP rules at issue in the main proceedings, it follows from paragraphs 87 to 90 of this ruling that these various rules, which appear as an inseparable whole and must therefore be understood as such, provide, in the first place, that any footballer — and in particular any footballer employed within the Union — who terminates the employment contract binding him to his former club, at any point or during its term, shall be required, should FIFA subsequently decide that such termination occurred without just cause, to pay compensation to that former club, the amount of which is calculated, in the absence of contractual stipulations to that effect, by reference to a number of criteria.

135 In that regard, it should be recalled that the first of those criteria, relating to the "law in force in the country concerned", has in practice remained almost entirely a dead letter, as noted in paragraph 106 of this ruling, and that the second criterion, relating to the "specificities of sport", is drafted, as also highlighted in that same paragraph 106, in extremely broad and imprecise terms that lend themselves to discretionary application and are therefore unpredictable and difficult to review. As for the remaining criteria, they appear at first sight to permit compensation to be set at an extremely high and dissuasive amount, as indicated in paragraph 107 of this ruling. By contrast, Article 4 of the Law of 24 February 1978 on the employment contract of paid sportspersons (Moniteur Belge of 9 March 1978, p. 2606), referred to by Lass Diarra in his written observations, appears to provide — subject to verification by the referring court — that, in a comparable situation governed by Belgian domestic law, the amount of compensation corresponds only to the remaining remuneration due until the expiry of the terminated employment contract and therefore does not encompass extraneous elements unconnected with the employment relationship arising from the contract in question, of the kind referred to in that same paragraph.

136 Furthermore, any player against whom his former club brings proceedings before the DRC seeking an order for payment of the compensation in question, on the grounds that the termination of the employment contract binding him occurred without just cause, is automatically treated, by that fact alone and in exceptional circumstances subject to the exclusive assessment of FIFA, as being deprived of any possibility of obtaining the issue of the ITC which, in the event of a transfer to a new club established in a Member State other than that in which his former club is established, conditions his registration with that new club and with the national football association to which it is affiliated. Consequently, in such a situation, that player is deprived of any possibility of participating in organised football, as follows from Article 5(1) and Article 9(1) of the RSTP.

137 Finally, any new club signing a player of this type would, by that fact alone: first, be jointly and severally liable for payment of the compensation to which that player has been or may be ordered to pay; second — unless it can prove otherwise — be deemed to have induced that player to terminate the employment contract binding him to his former club; and third, in the event that the termination of that contract occurred during its protected period, be subject — on the basis of the application of that presumption and without regard to the specific circumstances of the individual case — to a blanket ban on registering any new player, at national or international level, for two full and consecutive registration periods.

138 As the Advocate General noted, in essence, in points 52 to 55 of his Opinion, a combined reading of the RSTP rules at issue in the main proceedings shows, on the one hand, that they are capable of broadly and drastically restricting, from a substantive standpoint, a form of competition which would otherwise allow any professional football club established in one Member State to compete with any other professional football club established in another Member State for the signing of players already contracted to a given club — bearing in mind that such players represent, in numerical terms, the large majority of the pool of already trained or currently training players who could potentially be recruited cross-border at any given time, even if there are also, at any given time, a certain number of players no longer under contract for one reason or another. However, as recalled in paragraphs 81 and 129 of this ruling, the ability to sign such players constitutes an essential competitive parameter in the professional inter-club football sector.

139 Indeed, unless the former club's consent is obtained in the context of a negotiated transfer, the mere act of signing such a player exposes the new club to the risk of being held jointly and severally liable for payment of compensation that could be a potentially very significant amount. Moreover, the amount of that compensation is highly unpredictable for the new club, given the nature of the criteria by which it is calculated. Furthermore, for as long as a dispute exists between the player in question and his former club regarding the early termination of the employment contract binding them and, consequently, for as long as the ITC corresponding to that commitment has not been issued, that player can neither be registered with the new club nor participate, on its behalf, in any competition falling within the remit of FIFA, of the national football associations that comprise it, or of the continental confederations — such as UEFA — that it recognises. Finally, in addition to all these various elements, the new club also faces the risk of sporting sanctions in the event that the signing of the player takes place during the protected period of the contract binding him to his former club and the new club fails to rebut the presumption of inducement to breach of contract that such a signing triggers against it. As noted above, that sporting sanction consists of an automatic ban on the new club registering any further new players for two full and consecutive registration periods. Such a sanction effectively prevents the club from fielding any other new player it may wish to recruit during that period, rendering any such recruitment entirely pointless in practice.

140 Furthermore, this sweeping and drastic restriction on cross-border competition between clubs through the unilateral recruitment of players already under contract — and therefore on clubs' access to the essential "resources" that players represent — extends, from a geographical standpoint, across the entire territory of the Union and is, in temporal terms, permanent in nature, insofar as it covers the full duration of each employment contract that a player may successively conclude with a club and, in the event of a negotiated transfer to another club, with that latter club as well, as is also apparent from Article 13 of the RSTP.

141 In light of all its characteristics, this restriction guarantees, in practice, to each club the certainty or near-certainty of retaining its own players for as long as the contract or succession of contracts concluded with them has not come to an end or, prior to that end, for as long as the club has not decided to part with a player within the framework of a termination accepted by the player or a negotiated transfer of that player to another club, subject to the payment of a transfer fee to the latter.

142 As regards, secondly, the economic and legal context in which the RSTP rules at issue in the main proceedings are situated, it should be recalled, first, that, given the specific nature of the "products" that sporting competitions constitute, it is generally accepted, from an economic standpoint, that associations responsible for a sporting discipline may adopt, apply and enforce rules relating, in particular, to the organisation of competitions in that discipline, to their proper conduct and to the participation of athletes in them (judgments of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 142, and of 21 December 2023, Royal Antwerp Football Club, C‑680/21, EU:C:2023:1010, paragraph 103 and the case-law cited).

143 With regard more specifically to football and the economic activities generated by the practice of that sport, it is legitimate for an association such as FIFA to subject the organisation and conduct of international competitions to common rules designed to ensure the consistency and coordination of those competitions within a general annual or seasonal calendar and, more broadly, to promote, in an appropriate and effective manner, the holding of sporting competitions based on equality of opportunity and sporting merit. In particular, it is legitimate for such an association to regulate, by means of common rules, the conditions under which professional football clubs may compose the teams participating in such competitions, as well as the conditions under which the players themselves may participate in them. Finally, it is legitimate to ensure effective compliance with those common rules by means of provisions allowing for the imposition of sanctions (see, to that effect, judgments of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraphs 144 to 146, and of 21 December 2023, Royal Antwerp Football Club, C‑680/21, EU:C:2023:1010, paragraph 104).

144 In this context, given that the annual or seasonal development of professional inter-club football competitions in the Union is based on the progressive confrontation and elimination of participating teams and, consequently, is founded essentially on sporting merit — which can only be guaranteed if all such teams compete under homogeneous regulatory and technical conditions, ensuring a degree of equality of opportunity (see, in that regard, the judgments of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 143, and of 21 December 2023, Royal Antwerp Football Club, C‑680/21, EU:C:2023:1010, paragraph 105) — it may be legitimate for an association such as FIFA to seek to guarantee, to a certain extent, the stability of the composition of players serving as the backbone of the teams making up those clubs during a given season, by prohibiting, for example, as Article 16 of the RSTP does, the unilateral termination of employment contracts during the season, or indeed during a given year.

145 On the other hand, the specificities of football and the actual conditions under which the market constituted, from an economic standpoint, by the organisation and commercialisation of professional inter-club football competitions operates cannot justify any sweeping, drastic and permanent restriction — or indeed outright prohibition — across the entire territory of the Union of any possibility for clubs to participate in cross-border competitions by unilaterally signing players already under contract with a club established in another Member State, or players whose employment contract with that club was terminated without just cause. Under the pretext of preventing aggressive recruitment practices, such rules in fact amount to no-poaching agreements between clubs which, in essence, result in an artificial partitioning of national and local markets for the benefit of all clubs. In this regard, it is important to note that the classic mechanisms of contract law — such as the right of a club to receive compensation in the event of a breach of contract by one of its players, including where that breach was induced by another club and regardless of the terms stipulated in the contract — are sufficient to ensure, on the one hand, the lasting presence of that player at the first-mentioned club in accordance with those terms, and, on the other hand, the normal operation of market rules between clubs, enabling them, upon the expiry of the contract's normal duration or earlier if a financial agreement is reached between clubs, to proceed with the signing of that player.

146 Ultimately, those rules — even if presented as a means of preventing the poaching of players by wealthier clubs — are comparable to a general, absolute and permanent prohibition on the unilateral recruitment of players already under contract, imposed by a decision of an association of undertakings upon all undertakings that are professional football clubs, and bearing upon all workers who are those players. They thereby freeze the distribution of these resources among those clubs, subject to transfers negotiated between them. As such, they constitute a clear restriction of the competition that those clubs could otherwise exercise, giving rise to a market-sharing arrangement to the benefit of all those same clubs.

147 Thirdly and finally, as regards the objective purpose pursued by the rules at issue in the main proceedings from a competition law standpoint, it follows from the foregoing considerations that, regardless of the subjective intention or aims of the legitimate actors who may have inspired or been pursued by the entity that adopted them, those rules must be regarded as having the object of ensuring that — except in cases where a player's employment contract has been terminated for just cause or terminated by mutual agreement with the former club — it becomes extremely difficult, given the legal, financial and sporting risks involved, for professional football clubs to compete for access to the essential resources that are players already under contract, whether by unilaterally signing a player contracted to another club or a player whose contract is alleged to have been unilaterally terminated without just cause, with such a signing being possible only through a negotiated transfer between the former club and the new club.

148 Accordingly, an examination of the content of the rules at issue in the main proceedings, of the economic and legal context in which they operate, and of the objective aims they seek to achieve, reveals that those rules are, by their very nature, highly detrimental to the competition that professional football clubs could otherwise engage in by unilaterally signing players already contracted to a club, or players whose employment contract is alleged to have been terminated without just cause, thereby seeking access to the essential resources for their success that such high-level players represent. In those circumstances, those rules must be regarded as having the object of restricting, or even preventing, such competition throughout the territory of the Union. It is therefore unnecessary to examine their effects.

e) The possibility of considering certain specific conduct as falling outside the scope of Article 101(1) TFEU

149 It is settled case-law of the Court of Justice that not every agreement between undertakings or every decision by an association of undertakings that restricts the freedom of action of the parties to the agreement or of undertakings bound by that decision necessarily falls within the prohibition laid down in Article 101(1) TFEU. Indeed, an examination of the economic and legal context in which some such agreements and decisions operate may reveal, first, that they are justified by the pursuit of one or more legitimate objectives in the general interest which are not, in themselves, anticompetitive in nature; second, that the specific means employed to pursue those objectives are genuinely necessary for that purpose; and third, that even if those means are found to have the inherent effect of restricting or distorting competition, at least potentially, that inherent effect does not go beyond what is necessary, in particular by eliminating all competition (judgments of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 183 and case-law cited, and of 25 January 2024, Em akaunt BG, C‑438/22, EU:C:2024:71, paragraph 30).

150 However, that case-law cannot apply to conduct which, far from merely having the inherent "effect" of restricting competition, at least potentially, by limiting the freedom of action of certain undertakings, displays, in relation to competition, a degree of harm sufficient to justify the conclusion that its very "object" is to prevent, restrict or distort it (judgments of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 186, and of 25 January 2024, Em akaunt BG (C‑438/22, EU:C:2024:71), paragraph 32). Indeed, the degree of harm which such conduct causes to competition, and consequently the direct or indirect damage it may inflict on intermediate or final users and consumers across the various sectors or markets affected, is too great to permit it to be regarded as justified and proportionate.

151 Accordingly, with regard to conduct aimed at preventing, restricting or distorting competition, only by application of Article 101(3) TFEU, and provided that all the conditions laid down in that provision are met, may such conduct benefit from an exemption from the prohibition set out in Article 101(1) TFEU (judgments of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 187, and of 25 January 2024, Em akaunt BG (C‑438/22, EU:C:2024:71), paragraph 33).

152 In the present case, having regard to the considerations set out in paragraphs 134 to 148 of this ruling, it must be held that the case-law recalled in paragraph 149 of this ruling does not apply in the presence of rules such as those at issue in the main proceedings.

2.- On Article 101(3) TFEU

153 From the very wording of Article 101(3) TFEU, it follows that any agreement, any decision by an association of undertakings or any concerted practice that is contrary to Article 101(1) TFEU, whether by its object or by its anti-competitive effect, may benefit from an exemption if it satisfies all the conditions laid down for that purpose, it being noted that those conditions are more stringent than those referred to in paragraph 149 of this ruling (ruling of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 189 and the case-law cited).

154 Pursuant to Article 101(3) TFEU, entitlement to this exemption in any given case is subject to four cumulative conditions:

First, it must be established, with a sufficient degree of probability, that the agreement, decision of an association of undertakings or concerted practice in question must make it possible to achieve efficiency gains, by contributing either to improving the production or distribution of the products or services concerned, or to promoting technical or economic progress.
Second, it must be established, to the same degree, that a fair share of the benefits resulting from those efficiency gains is reserved for consumers.
Third, the agreement, decision or practice in question must not impose restrictions on the participating undertakings that are not indispensable to the attainment of those efficiency gains.

Fourthly, the agreement, decision or practice must not afford the participating undertakings the possibility of eliminating effective competition in respect of a substantial part of the products or services in question (ruling of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 190 and the case-law cited).

Failure to satisfy any one of these four cumulative conditions is sufficient to preclude the conduct in question from benefiting from the exemption provided for in Article 101(3) TFEU (ruling of 21 December 2023, European Superleague Company, C-333/21, EU:C:2023:1011, paragraph 208).

156 In this regard, with respect to the third condition — concerning whether the conduct in question is indispensable or necessary — the assessment requires an evaluation and comparison of the respective impact of that conduct and of genuinely available alternative measures, in order to determine whether the expected efficiency gains from that conduct can be achieved by means of less competition-restrictive measures. Furthermore, it cannot lead to a choice, as a matter of opportunity, between such conduct and such alternative measures where the latter do not appear to be less restrictive of competition (ruling of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 197).

157 In order to determine whether this third condition is satisfied in the present case, the referring court will need to take into account, on the one hand, the circumstance noted in paragraphs 105 to 112 of the present ruling that the RSTJ rules at issue in the main proceedings are characterised by a combination of features, a significant number of which are discretionary and/or disproportionate. Furthermore, it must have regard to the circumstance noted in paragraphs 138 to 140, 145 and 146 of that ruling that those rules provide for a sweeping, drastic and permanent restriction of the cross-border competition in which professional football clubs could engage by unilaterally recruiting top-level players. Indeed, either of those two circumstances, considered in isolation, prima facie precludes treating those rules as essential or necessary to enable efficiency gains, assuming such gains to be established.

Conclusion

158 In light of all the foregoing considerations, the answer to the question referred for a preliminary ruling, insofar as it concerns the interpretation of Article 101 TFEU, is that that article must be interpreted as meaning that rules adopted by a private-law association whose objectives include, in particular, regulating, organising and controlling football at world level, and which provide:

– first, that a professional player who is a party to an employment contract and who is deemed to have terminated that contract without just cause, together with the new club that signs him following that termination, are jointly and severally liable for payment of the compensation owed to the former club for which the player worked, such compensation being determined on the basis of criteria that are at times imprecise or discretionary, at times lacking any objective connection to the employment relationship in question, and at times disproportionate;

– second, that where the professional player's registration with the new club takes place during a protected period under the terminated employment contract, the new club is subject to a sporting sanction consisting of a ban on registering new players for a specified period, unless it demonstrates that it did not induce the player to break that contract; and

– third, that the existence of a dispute relating to that breach of contract prevents the national football association of which the former club is a member from issuing the International Transfer Certificate (ITC) required for the player's registration with the new club, with the result that the player is unable to participate in football competitions on behalf of that new club,

constitutes a decision by an association of undertakings that is prohibited under paragraph 1 of that article and may benefit from an exemption under paragraph 3 of that article only if it is demonstrated, by means of convincing arguments and evidence, that all the conditions required for that purpose are met.

Costs:

159 Since these proceedings are, in relation to the parties to the main proceedings, in the nature of a step in the action pending before the referring court, the decision on costs is a matter for that court. The costs incurred in submitting observations to the Court of Justice, other than those of the said parties, are not recoverable.

On those grounds, the Court (Second Chamber) rules:

1) Article 45 TFEU must be interpreted as PRECLUDING rules adopted by a private-law association whose purpose is, in particular, to regulate, organise and control football at world level, and which provide:

– first, that a professional player who is a party to an employment contract and is found to have terminated that contract without just cause, together with the new club that recruits him following such termination, are jointly and severally liable to pay compensation to the first club for which the player worked, such compensation being determined on the basis of criteria that are at times imprecise or discretionary, at times have no objective connection to the employment relationship in question, and at times are disproportionate;

– second, that, where the professional player's registration takes place during a protected period under the terminated employment contract, the new club shall be subject to a sporting sanction consisting of a ban on registering new players for a specified period, unless it demonstrates that it did not induce the player to breach that contract; and

– third, that the existence of a dispute relating to that breach of contract prevents the national football association of which the former club is a member from issuing the international transfer certificate required for the player's registration with the new club, with the consequence that the player is unable to participate in football competitions on behalf of that new club — unless it is established that those rules, as interpreted and applied within the territory of the European Union, do not go beyond what is necessary to achieve the objective of ensuring the regularity of inter-club football competitions by 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 prohibited under paragraph 1 of that article, and that they may benefit from an exemption under paragraph 3 of that article only if it is demonstrated, by means of convincing arguments and evidence, that all the conditions required for that purpose are satisfied.