My friends at Centre for Sports Law always seem to be God sent I would say. It’s hardly a day to the end of the Kenya Premier League- as it’s always been players seem to get dropped by clubs not sometimes even considering the amount of time left in their professional contracts. I would gladly point out at an example this past week at Thika United though in the official website details remain scanty- I think the whole country needs to get prepared for more of this from other clubs. Today, guest blogger Lawyer Elvis Majani explores the issues of termination of player of employment by clubs, giving a case study of the Kenyan situation as he explores examples too from the law book- Enjoy!
Employment disputes between professional football players and football clubs is now becoming a common thing in the Kenya Premier league. This maybe attributed to ignorance on contracts law from both parties, and arrogance from the employer clubs. In many ways, these disputes highlight the lengths the parties to the dispute are prepared to go, in order for them to achieve a solution, either by way of pre-mature termination of the contract of employment, compensation or reconciliation. Termination of a contract of employment in football is not a new concept in FIFA’s regulations; This issue which has mainly focused on the transfer of football players was highlighted in the famous Bosman case, however its continuous development suggests a remarkable ‘battle’ between the main stakeholders in this area: players and clubs, or, in the more appropriate legal terms: employees and employers.
The principle of respect and honour for employment contracts is universal. In football the provisions of FIFA’s regulations on the Status & Transfer of Players 2012 clearly emphasizes on the need for parties to a football contract to respect and honour the contract. Article 13 of the regulation, in particular, identifies that parties must observe the maintenance of contractual stability and thus states; “A contract between a professional and a football club may only be terminated upon expiry of the term of the contract or by mutual agreement”. This article works towards protecting the contractual interests of both the club and the player.
However, the principle of respect for the contract of employment does not absolutely stop a party from walking out of a “bad relationship”. Article 14 of the FIFA regulations on the status and transfer of players 2012 provides for the unilateral termination of the contract with ‘just cause’, provided the party opting out has a valid reason. Article 14 states; “A contract may be terminated by either party without consequences of any Kind (either payment of compensation or imposition of sporting sanctions) where there is just cause”. Even though there is no standard definition of ‘just cause’, the application of such principles will rely on the merits and circumstances of a case ,for instance a football player who has gone without pay for three months has a “just cause” to terminate his or her contract. A FIFA Commentary on the Regulations on the Status and Transfer of Players explains: “However, should the violation persist for a long time or should many violations be cumulated over a certain period of time, then it is most probable that the breach of contract has reached such a level that the party suffering the breach is entitled to terminate the contract unilaterally.”
A contract between a professional and a football club may only be terminated upon expiry of the term of the contract or by mutual agreement
Article 15 of the FIFA regulations on the status and transfer of players 2012 provides for termination of employment contracts with “sporting just cause”. This article provides a gate pass out of a club for a professional player who feels he has been underutilized and “wasted” by a club. The Article states “An established professional who has, in the course of the season, appeared in fewer than ten per cent of the official matches in which his club has been involved may terminate his contract prematurely on the ground of sporting just cause. Due consideration shall be given to the player’s circumstances in the appraisal of such cases. The existence of sporting just cause shall be established on a case-by-case basis. In such a case, sporting sanctions shall not be imposed, though compensation may be payable. A professional may only terminate his contract on this basis in the 15 days following the last official match of the season of the club with which he is registered.”
Just like in any other contract, the party found guilty of breach of contact will pay damages for the breach. In a football contract of employment, the party found to have breached such contract, on top of the compensation to the aggrieved party, may also have to face additional sporting sanctions, as provided for in Article 17 on the Status & Transfer of Players. It is important for parties involved in a football employment contract to make acquainted they with the provisions of Article 17 of the FIFA the Status & Transfer of Players before seriously considering a possible termination of the contract of employment.
Finally, the provisions set out in the Regulations concerned with contracts, and referred to above, are vital and meant to benefit both parties in an employment contract. The provisions are also vital to FIFA’s regulation and ability to control and have jurisdiction over the contractual stability in the football world. The failure of the parties in contract to honour and respect these provisions will lead to breach of contract and unnecessary litigation.