Expert Legal opinion on Footballer contracts in Kenya

Superfoota is always glad to bring to you expert opinion on several matters regarding the growth of the game in Kenya and around the world. This week, we are glad to have Mr Elvis Majani and Nicholas Mayieka talk to us about player contracts, the issues that players encounter when under contracts and the way forward regarding the same.

Ladies and Gentlemen, Enjoy!

BACKGROUND

Universally, a large percentage of people view sports as one of the utmost forms of recreation. With over 80 leagues and 2 billion fans worldwide, football, in particular, is considered the most favorite form of sports entertainment. Consequently, footballers are among the highest and best paid sportsmen in the world. David Beckham, Christiano Ronaldo, and Lionel Messi are just a few examples of footballers who are making a fortune out of the game. Similarly, footballers are some of the most sorted after sportmen [women] and/ or employees in the world with the likes of Gareth Bale and Christiano Ronaldo costing their present respective club, Real Madrid, over 80 million Euros in transfer fees alone. To facilitate and ensure that these colossal amounts of money is not squandered, wasted and/or misappropriated, by the Clubs, players and/or agents, the contracts signed by these parties are prepared and created to ensure that neither the players, agents nor the clubs are exploited and/or cheated out of benefits accrued and/or acquired. Such contracts are strictly prepared in conformity with and within the provisions stipulated FIFA Statutes and FIFA Regulations on the status and transfer of players[1], and the laws of Contract or Commercial Laws of the country the player is to be employed. In theory, therefore, while these principles as portended are to be beneficial to all the parties, in practice, the converse is true, especially as pertains to football contracts and agreements in Kenya.  In this opinion, we look at the various arising and manifest issues with sports contracting, and more in particular in football.

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ISSUES WITH KENYAN CONTRACTS

(1)               Absence of a termination clause

Most of the players contracts in Kenya lack basic clauses that should be considered vital in its creation and preparation. For example, some contracts drafted by various clubs for footballers in Kenya lack the termination clause. The absence of a termination clause raises ambiguity in the contract, especially, when a party wants to terminate it. The exit clause is an indispensable component of all contacts: employment, business agreement or partnerships. However, it is unfortunate that very few football clubs in Kenya find it necessary to insert the release clause in their contracts. The consequence of this oversight is the unfair dismissals of footballers in the name of “release”.

(2)               Unbalanced contracts

Kenyan football Clubs have an unhealthy ineptitude of inserting clauses in contracts that give them excessive advantage and powers, mostly unfair, over the players.  This habit of inserting lopsided clauses is responsible for the high number of dismissals of players in the Kenyan football league. As aforementioned, several contracts in the Kenya Premier League do not disclose exit clauses. The absence of a release clause leads to ambiguity, as the clubs will always take advantage of this situation and wantonly and indiscriminately dismiss its players. In some cases, a few clubs reserve the right to suspend a player without any consultation whatsoever. Additionally, the lack of a release clause breaches the constitutional rights of players by contravening the provisions of Article 35 of the Constitution of Kenya, 2010.  Generalized contracts

A comparison between contracts between the English Premier League and the Kenyan clubs clarifies this fact further. The English premier league, having developed for more than a century, is evidently more advanced than the Kenyan system. The contracts between the players and the clubs contain a number of clauses, particularly those stipulating the amount of remuneration of the player during his tenure at the club, travelling and accommodation allowances at the camp, training or in away matches, be it pre-season, during the season and off-season, morality and corporate social responsibility, injury and ultimately, during termination.  Unfortunately, the Kenyan clubs have simple and over-generalized contracts, creating some form of lacuna in terms of agreement on the specific clauses and terms of the contract and/or agreement.

(3)               Arbitrary dismissal of contracted footballers

In addition to this, the contracts between the football clubs and the players frequently contravene Article 13 of the FIFA Regulations on Status and Transfer of Players.  The aforementioned article states that a contract between the player and the club can only be terminated by expiry of the terms of the contract or by mutual agreement. The Kenyan football clubs have on numerous occasions, given the number of complaints by aggrieved players, of unilaterally terminating their contracts.  The arbitral and unilateral termination these contracts is a direct breach and violation of both the player’s rights and the FIFA rules and regulations. In as much as we must admit that most of our players are ignorant of FIFA rules and rules that cover contracts, it is the responsibility of the Clubs, Agents and also the players, to familiarize and be informed of these basic, yet fundamental aspects in contracts.  Regrettably, the players’ ignorance has led to the clubs taking advantage of them:  many contacts have been breached but the players have never taken any legal action against the Clubs. Both the Kenya Football Federation and the Kenya Premier League must share the blame for this failure as they lack clear judicial systems to deal with disputes between Clubs and players. For instance, FIFA itself has the Dispute resolution chambers whose structures are well defined to everyone through the Rules governing the procedures of the players’ status committee and the Dispute Resolution chambers and Articles 61- 65 of the FIFA statutes. A combination of an unclear judicial system and law (a responsibility of the managers of Kenyan Football, Parliament and the Ministry of Sports, Culture and the Arts) and ignorance of the players on these matters implies that the menace of arbitrary dismissal will continue haunting Kenyan football.

(4)               Lack of medical cover

Contracts in Kenya have no provision on injuries sustained during the contract of the player. In Kenya, there is no guarantee that a player, who suffers an injury that may cause him not to play during his contract term, will be adequately compensated under the contract.  These contracts do not contain any clause stipulating on how such a situation is to be ameliorated. Consequently, there are quite few cases and incidences where some clubs unfairly terminate the contracts of injured footballers. For example, a popular football club in Kenya in 2012 arbitrarily dismissed its former captain as a result of a nagging injury, sustained during one of the regular season matches.

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On the other hand, the English Premier League contracts stipulate that in the event of the occurrence of permanent injury or prolonged incapacity, the club is entitled to serve a notice upon the player terminating his contract before it is actually terminated.  It further goes on to award the player pay for a given amount of time. This should be a fundamental term in the contract, as it is a form of security, though somewhat minor to the player, but much better than nothing and thus would ensure the players standards of living is up to par often without any form of compensation whatsoever.

 

WAY FORWARD AND CONCLUDING REMARKS

The Kenya Football Federation, the Kenya Premier League, the Government of Kenya through Parliamentary prerogatives and the Ministry of Sports, Culture and the Arts, have the responsibility and mandate of developing sports, more particularly football.  This could be done by utilizing the most important commodity, this being the player. The player must be provided with a favorable environment for him to prosper, by educating him on the rules of the game: FIFA rules, the CAF rules, and the Kenyan Federation rules and any others laws and procedures that govern the sport. The player should not be exploited, to which end both the Federation and the League have failed. It is their mandate and obligation to ensure that they are aware of their rights, under contact or otherwise, are aware of the laws and regulations that govern football, both of local and international content and generally their welfare as career sportsmen. For example, education of players is needed, especially in contract matters.  Consequently, players should be advised before signing any contact. The players also need to understand the basic clauses that are required in contract for a footballer. Players should also understand that they can consider legal redress in case clubs breach their contracts. This is the education our players so desperately need.

The upshot of the foregoing, especially in regards to the safeguarding of the players rights when their respective Clubs go against the agreed terms and the football governing body’s stipulations, is that the governing bodies, should be on the forefront in ensuring that such wayward Clubs and its management and punished in accordance with the law, both local and international, especially FIFA and CAF. Fortunately, there has been a slow but yet reassuringly progressive change of tune and attitudes, as exemplified by the Bosman case[2]. The case set an important precedent on the free movement of labor and has had a profound effect on the transfer of players in clubs within Europe and internationally. It would be in the best interests of both the players and the clubs if they understood their rights and the terms of the contract too, such that the industry may grow stronger and faster.

The players need to be educated on their rights and laws of FIFA, CAF, and the Federation. This can be done through seminars, workshops and conferences organized by the Federation, the league, and in collaboration with the players Union and any other body and / or sports law experts, such as the Center for Sports Law, that have the capacity to offer legal advice to the players on issues regarding contracts.

Additionally, the Federation must come up with a well structured judicial system that will deal with issues involving disputes with clubs. The body must have specific rules to deal with transactions which will apply to the disputes arising out of them. The body must be of autonomous systems of resolution of disputes such as the rules of FIFA’s Dispute resolution Chambers (DRC) or the Court of Arbitration in Sports (CAS). This body will be able to deal with sport related matters and those involving members. Under the Sports Act, Act No. 25 of 2013, which has yet to be implemented, there is the establishment of the Sports Dispute Tribunal vide Section 55 of the Act, which is mandated to arbitrate of all issues as related to sports. The Tribunal is yet to be convened or officers appointed to office. It is imperative that the laws of Kenya as pertain to Contract, Commerce, Labour and Labour Relations should be enforced, implemented and adhered to for the posterity and prosperity of sports in general, and the rights, welfare and entitlements of the players in particular. Let us protect and empower our players.

 

*The authors, Elvis Majani and Nicholas Mayieka are both Trustees at the Centre for Sports Law.

* Contact them using the following Email Addresses:     nmayieka@csl.or.ke  and emajani@csl.or.ke 

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