Contractual Stability in Football & Players' Power



The last two decades have served as a catalyst towards enormous changes in the world of football. Several decisions by the European Court of Justice and numerous discussions between football governing bodies and the European Commission, have set the framework in which contractual stability in football could be achieved. Such framework attempts to strike a balance between the rights of football governing bodies and individual players, but is it true that such balance does not exist?

It is a well established principle of sports law [such principle emanating from European Union law and more specifically, the well known Bosman case] that once the original duration of a player's contract has come to an end, such player becomes a free agent. Such rule is not absolute and it may change in the situation where the club has given the player 'just cause' to terminate the contract of employment prior to its expiration. In this case and subject to the regulatory requirements of notification, the player's contract may also be terminated, granting such player the 'free agent' status.

This type of analysis may not be so clear, where the Anelka doctrine applies. Although the argument could be made that upon breach of an employment contract by a player, such contract may come to an end [particularly where the club has accepted the repudiation of the contract], it is hardly ever the case that a club would prefer to see its star player off the team or attempt to 'force' him to play for the team when the player has already indicated his unwillingness to play and has requested a transfer to another club. The undersigned has already advised [in the Carlos Tevez matter] that such development produces a lose/lose situation, as in the event where the player does not want to play for his current club and the club does not wish to sell the player, both parties would lose, as the player's value would diminish, along with his fitness levels and, consequently, his marketing potential. We must also always remember that as the relationship between a football player and his club is based on a personal services contract, no court in this country would ever award a specific performance remedy against the player and make him, therefore, play football in the situation where he refuses to do so.

It is this last situation that causes an anomaly in the balance of rights between football governing bodies and individual players. It may well be the case that a player intentionally breaches his contract, by refusing to play football for his club. If the club would be prepared to accept such breach, the player's contract would come to an end and automatically the Bosman ruling would apply, granting the player the freedom to move away. If such an intentional breach could be established, compensation, of course, would be awarded in favour of the club [the quantum of damages here may pose enormous difficulty, considering that the value of a player at any given time, may be extremely subjective]. But should the law of the land be enough to punish such intentional breach, or should disciplinary punishment be applied too?

If the answer to the above question is yes, then we may witness one of the very few situations where self-regulation could work in harmony with state regulation. We shall attempt, in the near future, to provide a possible answer to such question. In the meantime, we would welcome and encourage a discussion.

Dr. Gregory Ioannidis

23 November 2012