SWITZERLAND Trends and Developments Contributed by: Michele Bernasconi, Emanuel Cortada and Jonáš Gürtler, Bär & Karrer
case of FIFA v Lassana Diarra. In this case, the player contended that the RSTP had caused him severe damage by preventing him from secur - ing employment with a new club following the early termination of his contract with his previous club. The RSTP stipulate that in case a player breaches his or her contract, a new employing club can be held severally and jointly liable for potential compensation due to the player and, under certain conditions, can face sporting sanctions. Consequently, the player challenged the RSTP’s compliance with EU law, specifically European competition law and the freedom of movement of workers. In response, the ECJ provided abstract guidance on several issues referred to it by a Belgian court, concluding that certain aspects of the FIFA RSTP exceeded what was necessary to achieve FIFA’s legitimate interests, such as maintaining contractual stability. Following the ECJ judgment, FIFA initiated a global dialogue on the amendment of the RSTP, which resulted in a revised interim legal frame - work in December 2024, reflecting the consid - erations of the ECJ. Furthermore, in Switzerland, international sports federations are actively developing policies regarding the participation of transgender ath - letes, guided by the IOC’s 2021 framework on fairness, inclusion and non-discrimination on the basis of gender identity and sex variations. Con - sequently, federations headquartered in Switzer - land, such as World Athletics and World Aquat - ics, have been working to establish or refine their guidelines to balance inclusivity with fair com - petition. However, the implementation of these policies varies, with some federations having finalised their regulations while others continue
to deliberate on the most appropriate measures based on new scientific developments. By way of example, in February 2025, World Athletics initiated a new consultation pro - cess to update its eligibility conditions for the female category, focusing on athletes with DSD and transgender athletes. Proposed measures include mandatory cheek swab tests to deter - mine biological sex, aiming to reinforce the exist - ing regulations and address concerns about male athletic advantages that may manifest even before puberty. Matters of Debate The ECJ’s decision in the Diarra case has prompted vigorous discussions. The precise impact of this ruling on the player transfer sys - tem is yet to be determined. An initial indication, suggesting that the current transfer system may not be imminently changed as many have pre - dicted, is reflected in the recent transfer data released by FIFA. The number of international transfers has reached a historic high, with a significant amount again spent on international transfer fees. However, it is still too early to make any reliable predictions. It remains clear that cases involving internation - al transfers all have unique features, and each dispute will ultimately have to be decided on a case-by-case basis taking into account all perti - nent factual, regulatory and legal circumstances. The developments in the case of Diarra raise broader questions about the increasing involve - ment of the ECJ in the regulatory domain of sports associations. Diarra is neither the first nor the last case to be brought before the ECJ con - cerning the regulations of sports associations. However, in recent years, such challenges have become increasingly common, and this trend
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