What changes, and what questions are still open for the FIFA Tribunal / CAS
Below are some of my thoughts from the ISLA conference in Seville on 24 October 2026, where I had the opportunity to discuss the 2027 FIFA Transfer Regulations in a round table with my colleagues Dr. Roberto Branco Martins, Dr. Markus Wirtz and Ms Karolina Letniowska.
1. SOME INTRODUCTORY REMARKS
On 4 October 2024, the Court of Justice of the European Union (the Court, the CJEU) delivered its judgment in C-650/22, FIFA v. BZ (Diarra). Importantly, the Court did not invalidate the transfer system as such. Rather, it confirmed FIFA’s general competence to regulate football globally, the principle of contractual stability, and the admissibility of the International Transfer Certificate mechanism as a precondition for registration. What it found incompatible with EU free movement and competition law was much narrower but still important: the calculation criteria under Article 17 RSTP for compensation for a breach of contract were “unpredictable and difficult to verify” (Diarra, § 106) or “going beyond what is necessary for that purpose” (Diarra, § 108). In particular the automatic joint and several liability imposed on a player’s new club regardless of its actual conduct was found to bear “no relation of proportionality to the breach attributed to the new club concerned” (Diarra, § 110).
The resulting RSTP, Procedural Rules, FIFA Disciplinary Code and FIFA Governance Regulations amendments, concluded in June 2026 through FIFA’s new Global Social Dialogue Platform, enter into force on 1 January 2027. This note, reflecting some of the points raised at the ISLA conference roundtable on the reform, sets out briefly what has changed and what has not – and where the new drafting still leaves the substantive determination to CAS panels, notwithstanding considerable codification and a heavier evidentiary record.
Some of these points have also been addressed in my chapter on the interaction of the new RSTP with Swiss law and national legal orders, published in “El Reglamento de Transferencias FIFA 2027: Comentarios Prácticos” (dir. G. Abreu, M. Cardenal and G. Lozano – Comentarios, where the Swiss-law comparison below is developed at greater length (see my chapter and a link to download the ebook here).
2. A FIRST GLIMPSE OF COMPENSATION AND SPORTING SANCTIONS
Following Diarra’s criticism, Article 17 no longer refers to “due consideration of the law of the country concerned”: The new section on contractual stability apparently aims at becoming a quasi-self-contained compensation code, with Swiss law relegated to a gap-filling role. This is consistent with running a regulation intended to apply uniformly across jurisdictions.
One change is particularly noteworthy and clearly departs from the previous – based on the Swiss labour law provisions: Both players and clubs are now entitled, in principle, to a minimum compensation floor equal to the residual value of the contract. This changes from the previous differentiation between breach of contract by the employer (club) or the employee (player) anchored in the Swiss Code of Obligations (SCO).
With respect to sporting sanctions against clubs, an embedded proportionality provision now graduates sanctions by recidivism, from a warning or a fine, to a five-player registration limitation, then a full ban, then two consecutive bans. This replaced a uniform ban regardless of whether the breach was a first offence.
When it comes to Article 14, the regulation continued codifying into the body of the provision circumstances that can constitute “just cause” for termination.
3. SOME OPEN QUESTIONS
The more interesting question is now what has been codified into the body of the new RSTP and where the regulation now requires a heavier documentary record, interestingly without constraining the discretion of the deciding body, as will be shown below.
Liquidated damages: “excessively high” and “manifestly unfair”
Importantly, agreed-compensation clauses no longer need to be reciprocal. The Football Tribunal (and subsequently the CAS panel) may reduce a clause found “excessively high”, with restraint, and must disregard one found “manifestly unfair” in its entirety – two different remedies, and the regulation gives no indication of where one ends and the other begins. This gives discretion to the adjudicating instance to determine whether liquidated damages are in fact “excessively” high or even “manifestly unfair”. Notwithstanding the vague characterization, it is to be noted that this provision essentially codified Article 163 Swiss CO, whereby the judge had the power to reduce a contractual penalty that considered to be excessive. The surrounding circumstances – and not only the amount in question – will help in the assessment of the “excessiveness” of the clause.
Since these two terms are not further determined in the Regulation (nor are specific criteria given in the rules), Swiss law and jurisprudence (mainly from the Swiss Federal Supreme Court – SFT) will prove extremely useful (see also Josep Francesc Vandellòs Alamilla, Comentarios, p. 263 f.). Of course, this does not eliminate the risk of fragmented or even contradicting case law. When it comes to further challenging those decisions before the SFT, the threshold will again be extremely high – assessment of the evidence by the panel is not reviewable by the SFT as per Art. 190 (2) Swiss Private International Law Act – PILA; the only way to challenge the decision of the panel on the excessive / unfair character of the clause seems to be through the very narrow window of public policy (Art. 190 (2) e PILA).
Inducement: two different standards of proof and several issues to consider
Following the heavy criticisms of the Court, the new Article 17(9)-11 replaces the automatic presumption of inducement with a rebuttable, time-based legal presumption: a new contract signed within 45 days of the player’s own breach presumes inducement. The standard of proof to establish – and rebut – the presumption is not symmetrical: the club alleging inducement needs only to do so on a balance of probabilities, while the new club rebutting the presumption must meet the (higher) comfortable satisfaction standard. Essentially, it is still much easier to establish inducement than to refute it. The 45-day window since the breach occurred will itself give rise to other questions (such as to the exact moment of the breach) and is expected to be highly debated. But the variable standard of proof does not seem to be problematic and seems in any event to be immune from challenges before the SFT, which has repeatedly held that questions regarding the standard and burden of proof (or its reversal) do not seem to fall within the narrow window of public policy violation, cf. 4A_668/2016, see my note here).
Finally, “inducement” itself also remains largely undefined, as the new regulation did not codify previous CAS case law as to what exactly inducement means (see also Jordi López-Batet, Comentarios, p. 166).
Article 21bis and the limits of a non-waivable right
The new Article 21bis grants players earning under EUR 150,000 annually a mandatory right to 5% of the fixed transfer fee, waivable only above defined floors. This is a genuine innovation and its practical relevance or other questions remain to be tested in practice. For example, would this apply to a case of a buy-out clause – not further regulated or defined in the new RSTP but still falling within the general parties’ freedom of contract and Article 13 – rather than an ordinary club-to-club agreement? (see Horacio González Mullin, Comentarios, p. 215 ff.; see also Gustavo Abreu, Comentarios, p. 40).
Interpretive questions surrounding “just cause” under Article 14
Article 14(2) conserves the general category of “abusive conduct”, leaving substantive margin of appreciation to the adjudicating instance as to what constitutes “abuse”. In this regard, the so-called “predatory benching” may fall within this general category of abusive conduct, i.e. when players often accept a transfer before contract expiry, fearing that refusal will be met with reduced playing time so as to depress market value. In this respect, a good evidence record will be crucial for the establishment of said conduct, such as an unexplained drop in playing time despite good form, timing proximity to a contractual refusal, exchanges or no objective sporting explanation, shifting the burden to the club (see also Stephen F. Ross y Sergio González García, Comentarios, p. 318).
For the rest, Article 14 has added three new specific categories depicting abusive conduct based on previous CAS case law; notwithstanding such codification, the new categories still leave a considerable amount of discretion to the adjudicating tribunal as they employ terms like “abuse” (regarding the registration or deregistration of players), “abusive” (regarding the separation from training with the team) or even “undue” (on the eviction of a player from their home). Again, the evidentiary record, alongside with previous case law will be useful in order to determine just cause (see also Andrés Patón Urich / Ariel Reck, Comentarios, pp. 191 ff).
CONCLUSION
The pattern across Articles 14, 17 and 21bis is consistent. The new regulations codify standards that previously existed only in CAS jurisprudence or in football practice – abusive conduct, excessive compensation, manifest unfairness, undue inducement, participation of players in the transfer earnings – and will largely be determined based on the documentary record for each. Even though the CJEU required more transparent criteria, the discretion left for the deciding body remains important: the terms themselves remain open-textured, undefined by any fixed threshold or closed list of factors. CAS panels retain, after this reform – just as they did before – very considerable latitude to decide what “abusive”, “undue”, “excessive” and “manifestly unfair” mean on the facts of each case.
In conclusion, Diarra required FIFA to replace automatic, uniform rules with individualised, proportionate ones. The 2027 RSTP does this formally, but it does so by shifting the open questions to the hands of the panels applying it. The practical consequence is that documentary evidence will matter more than it did before, but it will not determine by itself the outcome on the main contested points, such as excessiveness, manifest unfairness, inducement, abusive conduct. The hearing panel will continue to exercise substantial interpretive discretion. The content of the reform will therefore be determined less by the text of the new RSTP than by the first wave of Football Tribunal and CAS decisions applying it from 2027 onward.
