As follow-up to my earlier posts on the Diarra ruling and Viktor Gyokeres’ transfer saga, this edition will take a closer look at the “protected period” in a player’s contract.[1] FIFA’s Regulations on the Status and Transfer of Players define this as the contract’s initial two-to-three-year stretch, when an unjustified breach will subject the player, and his or her next club, to sporting sanctions.
Effectively, these sanctions restrict a player’s ability to complete a unilateral transfer in those first two or three years. As such, the free movement Diarra introduced will not arrive until later in his or her contract. This will thin the crowd of players who, at a given time, can benefit from the decision.
That said, once the protected period ends, the player gains all the options that flow from Diarra. Conversely, the club’s leverage will drop – as will the amount of any transfer fee they can hope to get for the player.
The sanctions for breaching during the protected period
The RSTP sets the “protected period” at different lengths, depending on the age of the player involved. So for contracts that end before the player’s 28th birthday, it runs three years from the signing date. For those ending after the player’s 28th birthday, it is two years from signing.[2]
The period applies to two subsections of the RSTP: Articles 17(3) and (4). These govern instances when a player breaks his or her contract without cause and attempts to sign with another club.
First, Article 17(3) requires that sporting sanctions “shall be imposed” on any player who breaches during the protected period. Here, the minimum punishment is a four-month ban on appearing in games.
Second, Article 17(4) extends sporting sanctions to any club that induces a player’s unjustified breach. Normally, this will be the next club that attempts to sign him or her. As with 17(3), the sanctions are unpleasant – a two-window ban on registering new players.
The effect of the RSTP’s penalties on Diarra
The penalties in 17(3) and (4) qualify the rights Diarra established.
Namely, Diarra removed barriers that allowed clubs to hold contracted players until they received a transfer fee from another club. For example, under the old RSTP, when a breaching player tried to change clubs, his or her current club’s national association was prohibited from issuing an international transfer certificate – which any new club would need to register the player. Effectively, Diarra struck this rule and, thus, allowed the player to move.
In another example, the old version of Article 17(4) read that any club signing a player in breach was presumed to have induced the breach. And if the club failed to rebut the presumption, the two-window ban on registering new players would follow.
Like the bar on issuing ITC’s, Diarra ruled the presumption unlawful. FIFA reacted by amending 17(4) to eliminate the presumption. Now, 17(4) authorizes the ban only after the relevant FIFA judicial body finds that the new club did, in fact, induce the breach.
But while the Court ruled against the presumption, it did not condemn the two-window ban itself or make it discretionary for clubs that induce a breach in the protected period. Nor did FIFA when it amended 17(4). So because Diarra also left the player’s sporting sanctions intact, the RSTP still contains two strong deterrents to transfers involving contracted players.
In short, while Diarra made these transfers possible, it did not make all of them advisable.
How the transfer market might react to the combination of new factors
The interplay between Diarra and the RSTP leaves the transfer market chiseled with nuance. During his or her contract, a player can move at any time, for any reason, with or without his current club’s approval. In turn, another club can sign and register the player, again, with or without the previous club’s approval. But the timing of the transfer, as well as the player and club’s actions, could subject both to severe penalties. Effectively, these may forbid the move.
Still, the legal complexities only tell the back story. It is their effect on players’ transfer values that will be the more common – and nuanced – issue. Generally, a player’s transfer value drops as his or her club’s leverage drops. These drops come at certain stages in a player’s contract. For example, most fans would recognize the summer going into a contract’s final season as one such moment. Then, the player’s club becomes desperate to sell because he or she could leave for free the next summer.[3] [4]
In tandem with the penalties in Articles 17(3) and (4), Diarra may have created another moment when a club’s leverage falls.
Imagine a 22-year-old player who signs a five-year contract on the day the summer transfer window opens. During the next two summers, leaving without his or her club’s approval exposes the player to significant risk. Nor does it offer much reward, as few clubs will want to sign a player who cannot play for four months and might infect them with a transfer ban
But once the three years pass, Diarra becomes a factor. If the player wants to leave without his or her club’s approval, the club’s only remedy is breach of contract damages. While (at present) FIFA’s standard for calculating these is unsettled, it would surprise many if they reach as high as the 10-to-15 gigantic fees most summer windows produce. So when their protected period ends, at least some players will become cheaper. In other words, two or three years into a player’s contract, his or her club’s leverage drops. Call this the “Diarra Line” – the point when clubs lose the leverage to demand more in transfer fees than their players’ breach of contract damages.
[1] Mea culpa, I should have addressed the “protected period” in this post about Diarra’s potential consequences – because it narrows the ruling’s effect on the market.
[2] When a player renews his or her contract, the protected period restarts from the new signing date. RSTP Art. 17(3).
[3] This assumes the club does not plan to renew the player’s contract.
[4] Another marker is when a contract hits its final six months. Then, a player can begin negotiating with other clubs. This further diminishes his or her current club’s leverage, as another club can lock in a free transfer for the player immediately. So if it wants to get a fee for the player, the current club faces an urgent situation, where it must find a buyer before another club secure the free transfer.
Terry Brennan Law 