Mechanism For The Settlement Of Employment Disputes In Football
As the commercial stakes in sports continue to rise thanks to private sector investments, more government funding, cross-border collaborations, etc., this has led to a corresponding growth of sports-related disputes. The stakes are ultimately higher, thanks to the surge in the commercial value of the game and higher return on investments (ROI) expected by stakeholders. A major contributing cause of sports-related disputes includes the non-performance of obligations in contracts by either party to a contract or both, in some instances.
Specifically, in Football, Article 13 of the FIFA Regulation on Status and Transfer of Players makes it clear that mutually agreed-upon terms of a football contract are sacrosanct.
“A contract between a professional and a club may only be terminated upon expiry of the term of the contract or by mutual agreement”.
Further, Article 14 of the FIFA Regulatison on Status and Transfer of Players states:
‘Either party may terminate a contract without consequences of any kind (either payment of compensation or imposition of sporting sanctions) where there is just cause.’
On what constitutes ‘Just Cause,’ the FIFA Dispute Resolution Chamber confirmed in its 2nd November 2007 No. 31113 Decision that a clause permitting the club to terminate the contract at any point and pay compensation unilaterally is not valid. According to the DRC, such would create a disproportionate repartition of the rights of the parties to an employment agreement to the strong detriment of the player. (See also DRC 22nd July 2004, No. 74653.)
What constitutes Just cause for a club to terminate a player’s employment contract validly does not include poor performance. FIFA’s long-standing jurisprudence states that a player’s contract cannot be justly terminated for poor performance. For instance, on November 26, 2004, the FIFA Dispute Resolution Chamber ruled that a provision in a player’s contract of employment that allowed the club to end the agreement if the player’s performance fell short of what the club required could not be justified and was, therefore, invalid (DRC Decision 26th November 2004, No. 114534). In that instance, the parties signed an employment contract that was in effect from November 1, 2003, to October 31, 2005. According to the relevant document adduced before the DRC, the player’s contract was terminated due to a downturn in his performance and failure to achieve the club’s performance requirements. The DRC determined that no reasonable cause existed.
The DRC, in its Decision of 28th July 2005 No 75975, also declared that a player’s lack of performance is no valid cause for a club to terminate an employment contract unilaterally.
Also, Article 14bis of the FIFA Regulation on Status and Transfer of Players provides:
“In the case of a club unlawfully failing to pay a player at least two monthly salaries on their due dates, the player will be deemed to have a just cause to terminate his contract, provided that he has put the debtor club in default in writing and has granted a deadline of at least 15 days for the debtor club to fully comply with its financial obligation(s). Alternative provisions in contracts existing at the time of this provision coming into force may be considered”.
In the light of the provisions of the above laws and case law above, a player’s employment contract can be validly terminated upon expiry of the term of the contract, by mutual agreement and by a failure of the club to pay a player’s salary for two months at the due date and by the player giving notice of termination.
It should be noted that terminating a player’s employment contract based on an injury sustained while in the service of the club is not a valid ground for player contract termination; the FIFA Dispute Resolution Chamber (DRC) in many cases, including that of 13th May 2005 No 55230, has ruled that the club’s termination of the employment contract of the player because the player was injured, does not amount to a just cause. The DRC noted that the player’s knee injury was suffered in the course of the player’s service to the club, and so the club was to be responsible for covering the cost of treatment as well as the costs incurred during the rehabilitation process.
Article 14bis of the Regulation on Status and Transfer of Players gives the player a right to terminate his contract for default in the payment of his salary for 2 months thus:
“In the case of a club unlawfully failing to pay a player at least two monthly salaries on their due dates, the player will be deemed to have a just cause to terminate his contract, provided that he has put the debtor club in default in writing and has granted a deadline of at least 15 days for the debtor club to fully comply with its financial obligation(s). Alternative provisions in contracts existing at the time of this provision coming into force may be considered”.
In the Nigerian Professional Football League (NPFL), injuries frequently result in the termination of player contracts. Specifics on individual cases, however, are rarely made available to the public. The controversy surrounding injury-related contract terminations has brought attention to the league’s more significant issues with player rights and club commitments.
The Nigerian Professional Football League’s governing body, the League Management Company (LMC), has often been forced to arbitrate disagreements between players and teams over contract terms and injury management. In several instances, unfair contract terminations of players without appropriate compensation have occurred, resulting in legal challenges and the involvement of the League Management Corporation.
Many NPFL clubs experience financial difficulties, which frequently lead to the non-payment of wages and the unjust termination of contracts, including those that result from injuries. This leaves players demoralised and dissatisfied with this situation; some refuse to practise or play since they have yet to receive their salary or have other contract violations.
The following are examples of African footballers who terminated their employment contracts because their respective clubs owed them wages.
- Ahmed Musa, the Super Eagles of Nigeria Captain’s contract, was terminated with Sivasspor FC of Turkey due to the non-payment of his salary for 6 months.
- Michael Essien: The Ghanaian midfielder terminated his contract with Indonesian club Persib Bandung in 2018 due to non-payment of wages. Essien had joined the club in 2017, but persistent issues with salary payments led to the termination of his contract.
- Didier Drogba: The Ivorian legend had a similar issue with Shanghai Shenhua in 2012. Drogba moved to the Chinese club from Chelsea but had to leave after a few months due to non-payment of his salary, leading him to join Galatasaray.
- Emmanuel Adebayor: The Togolese striker had issues with non-payment during his time at Paraguayan club Olimpia. He left the club in 2020, citing non-payment of wages for his departure.
- Khalid Aucho: The Ugandan midfielder terminated his contract with Serbian Red Star Belgrade in 2017. Aucho joined the club in 2016 but faced significant delays in salary payments, leading to the termination of his contract by mutual consent.
The following are examples of African footballers who had employment contracts terminated as a result of injury.
- Edmore Chirambadare, a former Zimbabwe international, went through the agony of having his contract terminated by Kaizer Chiefs in the DStv Premiership because of an injury. Chirambadare’s contract was abruptly terminated in 2018. Despite winning the 2016–17 Kaizer Chiefs Most Improved Player award, he was cut from the team. He considered the sudden termination the lowest point of his South African career and the worst phase in his career. After an outstanding season in Zimbabwe, where he assisted Chicken Inn in winning their lone Castle Lager Premier Soccer League championship, Chirambadare signed with Kaizer Chiefs in July 2016.
- Eric Bekoe, a Ghanaian football player who played with Asante Kotoko and Sekondi Hasaacas, a former goal king of the Ghana Premier League, suffered a series of injuries that hampered his career progression. His prolonged injury issues affected his contract with Sekondi Hasaacas.
- Tefu Mashamaite, is a South African footballer with SuperSport United, Kaizer Chiefs. The South African defender’s career was marred by injuries which led to the early termination of his contract with SuperSport United.
- Papy Djilobodji: The Senegalese defender’s contract was terminated by Sunderland in September 2018. Djilobodji was signed by Sunderland from Chelsea but failed to impress. After the club’s relegation to League One, Djilobodji did not return on time for pre-season training and did not meet fitness standards upon his return, leading to the termination of his contract for poor performance and lack of professionalism.
- Ezekiel Bala: The Nigerian forward’s contract was terminated by Finnish club KuPS in 2011. Bala joined KuPS from Nigeria but struggled to adapt to the Finnish league and failed to make a significant impact, leading to the termination of his contract due to poor performance.
- Bernard Morrison: The Ghanaian winger’s contract with South African club Orlando Pirates was terminated in 2018. Morrison struggled to find form and consistency, leading to his release from the club due to unsatisfactory performance levels.
It is, without doubt, the intention of the Football World Governing body to ensure the sanctity of the football players’ service contract and the football ecosystem at large. The FIFA Regulation on Status and Transfer of Players in Article 17 (1)thereof provides as follows:
‘In all cases, the party in breach shall pay compensation. Subject to the provisions of Article 20 and Annexe 4 concerning training compensation, and unless otherwise provided for in the contract, compensation for the breach shall be calculated with due consideration for the law of the country concerned, the specificity of sport, and any other objective criteria. These criteria shall include, in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, the fees and expenses paid or incurred by the former club (amortised over the term of the contract) and whether the contractual breach falls within a protected period’.
The Court of Arbitration for Sports, in a plethora of decisions, including but not limited to CAS 2008/A/1519- 1520, para. 80, CAS 2005/A/876, p. 17, CAS 2007/A/1358, para. 90, CAS 2007/A/1359, para. 92, and CAS 2008/A/1568, para. 6.37, has held that the purpose of Article 17 (1)of the FIFA Regulation on Status and Transfer of Players is to ensure contractual stability in football.
Due to the fixed calendar nature of football seasons, prompt resolution of issues is crucial. To avoid the arduous, expensive, and contentious nature of traditional court-based legal proceedings, some nations have developed sophisticated alternative dispute resolution (ADR) mechanisms specifically designed to settle issues of sports.
Football has also created its own, primarily arbitration-based, sport-specific conflict resolution system to avoid using ordinary courts to settle football-related disputes and the issues that come with them.
The Court of Arbitration for Sport (CAS) is authorised by Article 57(1) of the FIFA Statutes to
“. . .resolve disputes between FIFA, Members, Confederations, Leagues, Clubs, Players, Officials, and licensed match agents and players’ agents.”
However, CAS will only utilise this authority when all member associations of FIFA have established their internal dispute settlement procedures have been exhausted.
Article 4(3) of the Nigeria Football Federation Statutes 2010 stipulates the formation of institutional mechanisms required to settle internal disputes amongst NFF members, players, clubs, and officials.
The NFF Statutes specifically provide for creating a Disciplinary Committee with restricted authority to oversee the NFF Disciplinary Code. The rulings of this Disciplinary Committee may be appealed to the NFF Appeal Committee.
The National Dispute Resolution Chamber (NDRC), an impartial arbitration panel with proper legal standing, should be the first place of appeal for any party experiencing difficulties relating to employment contracts in the Nigerian football industry.
FIFA has mandated member Associations to set up Dispute Resolution Chambers (DRCs) to address conflicts within their respective jurisdictions. FIFA has already established a DRC to handle disputes; however, the NFF has yet to implement it.
Article 68 of the NFF Statutes stipulates the creation of an Arbitral Tribunal, a national version of the NDRC, to handle any internal football-related disputes that fall outside the purview of the Disciplinary Committee.
There is a tremendous need for improvement in the Nigerian football industry’s conflict settlement process. Where justice cannot be guaranteed, an industry cannot grow. Conflict settlement is pivotal to the growth of the football industry in Nigeria as it will encourage more players to settle and play football without fear. Apart from that it will create a more stable and harmonious environment which is conducive for growth and development.
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