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Contractual stability and its limits

Article 13 of the Regulations governs ‘Respect of contract’. It provides that ‘A contract between a professional and a club may only be terminated upon expiry of the term of the contract or by mutual agreement’.

There is, of course, no provision for a transfer fee in the case of the transfer of a registration of a player whose contract has come to an end. This is precisely what was outlawed in Bosman. So the out-of-contract player may simply negotiate a contract with a new employer. It is also stipulated by Article 18(3) of the Regulations that a player may enter into contract negotiations with a new employer within the final six months of the term of the existing contract. The generosity of this concession is entirely relative. A normal employee outside football could enter into such negotiations at any time, subject only to the restraints imposed by local contract and employment law: he or she would not face any collectively imposed industry-wide restrictions. By contrast contractual stability in football is aggressively protected/7

Termination of contract where there is just cause is recognized by Article 14 of the Regulations, and Article 15 creates a special case of ‘sporting just cause’, which allows for case-by-case examination of the possibility of early release from a contract where a player has played in fewer than 10 per cent of a club’s official matches over the course of a season.

Article 16 of the Regulations provides that a contract cannot be unilaterally terminated during the course of a season.

Article 17 of the Regulations deals with the consequences of a terminating a contract without just cause. This, then, is the player who refuses to continue to play

  • 72 See D McArdle, Dispute Resolution in Sport (Routledge 2015) ch 8.
  • 73 CAS 2014/A/3793 Barcelona v FIFA.
  • 74 The Nice Declaration (n 42) para 13. On the Nice Declaration, see Ch 6.3.
  • 75 White Paper on Sport (n 44). See Ch 6.5. 76 ibid 16.
  • 77 And in some other sports too: see L Kurlantzick, ‘The Tampering Prohibition, Antitrust, and Agreements between American and Foreign Sports Leagues’ in J Nafziger and S Ross (eds), Handbook on International Sports Law (Elgar 2011) ch 13.

for a club with which he has a contract, because he wishes instead to join another club. This is the critically and centrally important test of just how special a footballer really is. A ‘normal’ employee who chose to break his or her contract would be subject to the remedies for breach of contract available under the law of the contract and, in addition, to whatever provisions of local employment law might govern the matter. There is a huge variety in approaches taken across Europe, often sensitive to the particular context—affected by, for example, the level of confidential knowledge or know-how held by the employee. Applicable laws range from rather strict rules that might prevent the contract-breaker joining a new employer for a considerable length of time to much less interventionist rules that tend to prioritize the return of the contract-breaker into the labour market as quickly as possible.[1] [2] The control exercised over footballers as employees is much stronger. By virtue of these FIFA Regulations the concern to protect contractual stability and sporting integrity is translated into a system of sanctions imposed by the lex sportiva on the contract-breaker, quite independently of any consequences that apply under national law.

According to Article 17, compensation is payable by the party in breach. This shall be calculated ‘with due consideration for the law of the country concerned, the specificity of sport and any other objective criteria’—though it is also specified that this applies ‘unless otherwise provided for in the contract’. It is well known that some deals include a specific contractual provision for the sum to be paid where a player does leave early. For example, Lionel Messi is reported to have such a ‘buyout’ clause set at €250 million/9 This has much the same function as a transfer fee. At least where the player is prized and well-advised one can see good reason to treat such provisions as enforceable as an expression of private autonomy, though this will depend on national law.

An additional provision is made for ‘training compensation’ by Article 20 of the Regulations. This applies when the player signs a first contract as a professional and each time a professional is transferred until the end of the season in which the player’s 23rd birthday falls. An Annex to the Regulations sets out a method of calculation, but each case will need to be assessed according to its own facts. For young players, as defined, transfers out of contract are not free: to be ‘on a Bosman’, with the consequence that money that would be payable as a fee is available for negotiation as enhanced salary, is the preserve of older players.

Article 21 covers a solidarity mechanism: this is payable where a player is transferred before the expiry of a contract by the club he is leaving to any club that has contributed to his education and training. Annex 5 to the Regulations amplifies how the detailed calculation shall be made.

Under the Regulations the consequences of contract-breaking are not limited to compensation alone. ‘Sporting sanctions’ may also be imposed on the contractbreaking player. These may involve suspension from eligibility for official matches, up to a maximum period of six months. But the possibility of such extra sanctions being imposed depends on the player’s age and the precise time at which the contract has been broken. Sporting sanctions may be imposed only where the breach without just cause occurs within the ‘protected period’. This is a period of three seasons or three years (whichever comes first) following the entry into force of a contract where that contract is concluded before the player’s 28th birthday, or two seasons/two years where the contract is concluded after the 28 th birthday. It is also envisaged that sporting sanctions may be imposed on a club in breach of contract or inducing a breach of contract within the protected period. A ban from registering new players may be imposed on the offending club.

This ‘protected period’, which lasts for three years for players who were under 28 when they signed their contract and two years for older players, is plainly designed to promote contractual stability with still more vigour than is achieved through the compensation system. Its corollary is to deter contract-breaking by players with more venom than would apply under normal contract and employment law. The free movement of the player enjoyed within the terms allowed by local contract and employment law is weakened by the interests of the club in ‘contractual stability’, reflected through the sanctions regime created by FIFA’s Regulations. The legal assessment of this restrictive system, which is unique to sport, will be addressed later, in section 9.10.

  • [1] See European Commission, ‘The Economic and Legal Aspects of Transfers of Players’ (January2013) ch 2 accessed 29 November 2016. The Study is examined further in sect 9.11; see also Van den Bogaert (n 63) 282-91.
  • [2] accessed 29 November 2016.
 
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