The recent financial troubles at Bolton Wanderers alongside other reports of other Football League clubs such as Macclesfield and Bury failing to pay their players for significant periods of time has brought into focus the contractual issues involved in the employment relationship between a player and their club. In a more unusual example, Dutch player Jordie van der Laan had his contract cancelled by Dutch second-tier club, Telstar, when he pulled a sickie to attend the first leg of the Champions League semi-final between Spurs and Ajax. This blog post will look at the issue from the perspective of the player, and what rights they have.
The first place to look in such situations is the FIFA Regulations on the Status and Transfer of Players (RSTP), and in particular, Articles 13 to 18. Article 13 states that a contract can only be terminated by mutual agreement or when it expires.
Article 14 - Just Cause
Article 14 then goes on to state that a contract may be terminated by either party without consequences where there is 'just cause'. 'Just cause' isn't defined specifically in the RSTP, but this would generally mean where either party's behaviour is so bad that it would be impossible to carry on with the contract. This can either be an accumulation of smaller acts, or one single act of a particularly bad nature. In legal terms, this is defined as a 'repudiatory breach'.
Non-payment of wages can constitute 'just cause' given that a club’s obligation to pay a player’s wages is its main employer obligation and if it repeatedly fails to pay a player's wages, it can often lead to the player losing confidence in the club. Usually parties to agree when the player can terminate his contract by stating this in the contract. For instance, in the standard Premier League contract, a player can terminate his contract if the club has failed to pay them within fourteen days from the date on which the player has provided notice to terminate. Article 16 RSTP also states that a unilateral termination must only be submitted at the end of the season, meaning a player cannot unilaterally terminate his contract during the season in progress. If it is not included within the contract, then the non-payment must satisfy two conditions to qualify as 'just cause':
The amount must not be trivial or insubstantial (usually means non-payment for three months or more)
The player must warn the club in writing that they are in breach and give them a chance to repair the breach
In relation to the Bolton Wanderer's example, reports suggest that players and staff have not been paid for March and April, so they are coming close to the three-month minimum to be able to trigger the termination. A notable example of this taking place is when Franck Ribery terminated his contract with Galatasaray in 2005 and signed for Marseille after going unpaid for four months, and crucially having his case upheld in the FIFA Dispute Resolution Chamber and at the Court of Arbitration for Sport (CAS).
Often if a party is responsible for a breach of contract, then they are liable to pay compensation, and the position is the same under FIFA RSTP. If there is no clause in the contract which states what the damages should be, then Article 17 RSTP comes into play by stating that the remainder of the player's basic wage as a minimum should be paid as compensation.
Article 15 - Sporting Just Cause
A lesser know provision in the FIFA RSTP is Article 15 which introduces the concept of 'Sporting Just Cause'. This is defined in the RSTP as an established professional who has appeared in less than 10% of his teams official matches during the course of that season. In order to terminate for 'sporting just cause', the player in question must do so in the 15 days following his clubs last official match of that season.
The most significant case on “sporting just cause”, O v. FC Krylia Sovetov Samara7, CAS considered the player’s circumstances “with regard to his legitimate aspirations to develop his skills and advance in his professional career.” A player’s circumstances can vary according to their age, his career progression, his on-field position, any injuries or suspensions and any discontentment displayed about his lack of playing time.
In Samara, a young Nigerian outfield footballer playing for the Russian Premier League club FC Krylia Sovetov Samara could not establish “sporting just cause” as he had failed to alert the club of his dissatisfaction at not being played. Therefore CAS decided that without the player expressing any concerns the club could not take corrective measures to improve the situation between the parties and therefore termination of a contract for “sporting just cause” on this basis could not be accepted. The player also failed to terminate his contract during the 15 days following the end of the season. So looking at this example, it is not easy for a player to trigger Article 15 and claim sporting just cause.
The RSTP attempts to tread a delicate balance between a players contractual right post-Bosman to free movement, and enabling contractual stability. It seems to do this quite well as the three months requirement allows parties to attempt to resolve disputes between themselves in the first instance and creates opportunities to repair the relationship in accordance with good dispute resolution practice without giving unscrupulous club owners licence to withhold wages to players who are legally entitled to them.