“Contractual Stability is of paramount importance in football, from the perspectives of clubs, players, and the public”. FIFA Circular Letter 769.
FIFA regulates football in order to protect the rights of players and clubs. The FIFA Regulations aim to safeguard the principle of maintenance of contractual stability between professional football players and clubs which is of fundamental importance in order to have an efficient transfer system and to maintain a competitive balance.[1]
The Court of Arbitration for Sports (CAS) has been found to at all times tried to give flesh, life and meaning to this very powerful concept of contractual stability. Even, these high profile cases have shown that a principle such as the maintenance of contractual stability must be reviewed and refined in order to improve the manner in which it is policed and governed.
Pacta Sunt Servanda is the pillar of the law governing contract. The doctrine which could be traced to the ancient Roman law, means in a nutshell that “agreements must be kept”.
Contractual Stability is one of the major criteria for all parties to a contract, in the world of football, to the football club on the one hand and the football player on the other hand. Stability allows certain terms and conditions of relationships to be fixed, which reflect on the interests of the parties and enables them to take into due account the economic efficiency of a deal.
Transfer of Players
By Article 2 (2) of the FIFA Regulations on Status and Transfer of Players, players are either considered as amateurs or professionals. The well drafted Regulation clearly defines a professional as a player who has a written contract with a club and is paid more for his footballing activity than the expenses he effectively incurs[2].
Thus, all of the differently designated contract such as agreements of “apprenticeship”, “training” or “scholarship” will be categorized as either amateur or professional. Since the introduction of the new Regulation in 2001 (Revised two times, in 2006. and 2010[3].), the so-called “federative rights” were replaced by the concept of contractual stability. Under this concept, the link between a player and the club is principally based on a contract instead of the registration. Hence, a written contract of employment is the instrument which regulates the relations with professionals, but not with amateurs[4].
The contract which creates the very sacred link between a player and the club is very vital in the modern era of football as all eyes go back to that link in cases of breach. The preservation of that link is strongly advocated for by the writer in the Nigerian Professional Football League[5].
This principle of contractual stability is of paramount importance in the world of football. It is at the basis of an efficient transfer system characterized inter alia by the redistribution of wealth from ‘big’ to ‘small’ clubs as well as by secured investments in youth development. If the principle of contractual stability is very well understood by clubs, players and all stakeholders in the football world and put into practice, the level of growth both at the amateur and professional level of football in Nigeria will be enviable.
Under the current FIFA transfer rules a compensation must be paid in case of unilateral breach of an employment contract in football and such compensation is calculated by taking into due account the relevant national law and by referring to objective criteria[6].
Football in Nigeria
In Nigeria, the Nigerian Football Federation and the League Management Company primarily look at issues pertaining to the contracts between a club and player at the various league levels. Interestingly, the NFF and the LMC have been making tireless efforts towards stabilizing the contract regime especially between clubs and players at the topflight Nigerian Professional Football League.
The difficulty arises where the record systems adopted by clubs are very poor. Most contracts entered into between clubs and players in the Nigerian Professional Football league are not stable because of the manner in which the contract was entered into and nature of the terms and conditions of the contract. Most players append their signatures to unfavourable contracts because of the economic situations prevalent. Some others do so under duress and undue influence. In the long run, when the speck falls off the eyes and the player can no longer cope with the situation at hand, breach of the terms of the contract becomes imminent and inescapable. The doctrine of stability of contract therefore becomes defeated.
Curiously, Article 13 of the FIFA regulation on the Status and Transfer of Players headed “Respect of Contract” provide that a contract between a professional and a club may only be terminated upon expiry of the term of the term of the contract or by mutual agreement. No clear provision was made in the statute according the players the right to terminate their employment contract[7]; rather Article 17 of the Regulation provides an exception to the stability doctrine and deals with the consequences of terminating an employment contract without just cause.
Nigerians must know that if contracts are not adhered to and respected by parties the effects on the league and football economy is always harsh.
In order to make the doctrine of contractual stability workable in Nigeria, the Player’s Union must be up and doing in its role towards the protection of player’s interest. Again, in the event that clubs elect to include a termination clause or a unilateral option in the contract, players must be offered the opportunity to take independent legal advice prior to entering into the contract. This will give players a greater knowledge of the situation.
Conclusion
We conclude by charging all relevant bodies (NFF, LMC, NNWL, Player’s Union, Football Clubs etc)[8] to at all times strive to uphold the very revered and powerful doctrine of contractual stability. Indeed, the League Management Company which directly looks over the topflight league should be stable both internally and externally so that the struggle for the actualization of sustainable and stable football clubs versus football player’s contract regime would be won and ultimately enthroned at all levels throughout Nigeria. The game of football can only achieve uniformity, certainty, equality and integrity on a worldwide scale if a variety of fundamental principles and basic salient rules are applied to all parties involved.
By: Ferdinand Emeka Ugwuarua, LL.M
[1] Contractual stability in professional football: recommendations for clubs in a context of international mobility by Diego F.R. Compaire (Italy/Argentina), Gerardo Planas R.A (Paraguay) and Stefan-Eric Wildemann (Germany).
[2] All other players are considered to be amateurs.
[3] 2014 also.
[4] Mr. Sc. Andrijana Bilić: Contractual Stability versus Players’ Mobility. P.883
[5] Sadly, most clubs in Nigeria do not abide by the terms of the contract entered into by players. Clubs incessantly terminate the contracts of players without taking into consideration the provisions of the law in Nigeria.
[6] Of course, the consequences of such a termination in Nigeria for the contractual parties (players and clubs) could be extremely important in both economic and sports terms.
[7] The Regulation only states that either party could terminate where there is “just cause”. What amounts to “just cause” becomes the hard nut to be cracked.
[8] NFF means Nigeria Football Federation. LMC means League Management Company and NNWL stands for Nigeria Nation Wide League.