Football, beyond sport, is a million-dollar economic industry that has evolved over time until it has not only a sports and administrative structure, but also a particular regulation derived from the specialty of this sport, creating an authentic branch of law that It is known as “soccer law”. Hence, there are exclusive legal principles of football law that have been conceived and developed through the judicial bodies of FIFA -recently restructured under the umbrella of the "Football Court"-, the arbitration awards of the Court of Arbitration for Sport ( Court of Arbitration for Sport 'CAS') and the Swiss Federal Court. On this occasion, we are interested in addressing the principle of "just cause" as a modality of termination of the contract of professional soccer players, trying to define it and briefly illustrate some scenarios that constantly arise in the contractual relationship of soccer subjects.
Ideally, every contract must be respected, executed as stipulated and its termination should come by the satisfaction of the object thereof or by mutual agreement between the parties. Starting from there, FIFA bases contractual relations on the principle of contractual stability between players, coaches, clubs, associations and federations, providing precisely what is indicated in article 13 of the Regulation on the Status and Transfer of Players (RETJ[ 1], hereinafter). Naturally, the FIFA regulations provide exceptions to the principle of contractual stability –considering that the termination of the contract must always be seen as ultima ratio[2]– using two casuistry that must be observed with special attention from the perspective of football law and not of civil law: termination of contracts for justified cause (article 14 of the RETJ) and termination of contracts for justified sports reasons (article 15 of the RETJ). On this occasion, we will only limit ourselves to the first: termination of contracts for justified cause.
From the beginning, the justified cause for termination of contracts has been defined by the doctrine and jurisprudence of sports justice, hence, to date, there is no resounding answer to the concept of "just cause" as a reason for terminating the contract of a soccer player/coach, causing it to be an indeterminate legal concept of soccer law. This is so with the intention of allowing judges to determine through a case-by-case analysis the existence or not of a fair termination of the contract. However, the regulation outlines three fundamental elements that have been leading the way: (i) the contract can be terminated without financial responsibility for whoever invokes it correctly, as long as there is a justified cause (leaving the concept open); (ii) the contract can be terminated when one party acts forcefully with the intention of causing the other to terminate or modify the contract, and; (iii) due to the existence of pending wages.
The concept of justified cause is indeterminate. This is so because there is no soccer regulation that defines it and therefore, the conceptualizations that we have today have been the work of the justice bodies of FIFA and the CAS. Undoubtedly, in simple words the concept of just cause is the factual circumstance that generates a valid reason for the early termination of the contract between a football club/association/federation and the coach/player[3]. Now, what is the formula to determine whether or not there was a termination with just cause of the contract? This is a complex task that must be analyzed on a case-by-case basis – evidencing the permeation that common law has had in FIFA regulations. To illustrate, FIFA has commented[4] that three elements must be taken prior to the unilateral termination of a contract to avoid economic risks:
Causes attributable to the club/association/federation:
1. Relegate the player to a reserve team:
It may seem like a strange cause for which the player can end his contract with responsibility for the club. What this cause means is that the player has normally signed a contract with the first team and not with the "b" team or a lower division, therefore, unless it has been contractually agreed, the player will only provide his services with the first team. Sometimes, also by mutual agreement, the player and the club agree to send the player to the subsidiary or second category team for a certain time in order to improve the pace of play and adapt, however, this condition must be temporary. Otherwise, there would be a contractual violation.
2. Remove the player without reason from training and team activities:
On several occasions, CAS itself has stated that soccer is a team sport and, therefore, most training sessions and exercises must be done as a team[5]. For this reason, soccer regulations penalize the separation of a player from his teammates for a prolonged period of time when it is not the result of necessary particular exercises[6]. This includes sports and social activities of the club, since in accordance with FIFA criteria, the player's psychological and personal rights must always be guaranteed[7].
3. Delay in payment of salary for more than 2 months:
Article 14bis of the RETJ is clear in establishing that the player has justified cause (also applicable to the coach) when he is owed two months of wages or more, prior to having placed the club in default so that it pays off for a period of no less than fifteen days. According to statistics provided by FIFA, cases related to non-payment of wages are the most common. The RETJ requires two elements for the contract to be terminated with just cause: that two or more months are owed and that the club has been in arrears[8] or the club is aware of its breach for a period of not less than fifteen days[9 ]. It is important to note that this ground applies only to non-payment of wages and not to other economic benefits that may exist. However, in some particular cases and depending on the attitude of the parties and the amounts involved, the termination of the contract has been recognized for lack of other benefits[10].
4. Early termination of the contract for sporting reasons:
The early termination of the contract based on the fact that the coach or player has not provided the expected sporting results is one of the grounds that clubs resort most frequently in jurisdictions with little sports legal tradition, we assume that due to ignorance. The termination of a player's or coach's contract due to the fact that the sporting results that were expected are not accompanied by it is not, under any circumstances, a valid motivation for the termination of the contract[11]. FIFA and CAS, on several occasions, have marked this jurisprudential criterion, since there is a firm intention to support the principle of pacta sunt servanda and the term of validity of the contracts. This jurisprudential criterion is applicable even when the parties have agreed that due to football results the contract may terminate[12]. In the words of Juan de Dios Crespo Pérez:
"... there will be no just cause for non-payment or non-compliance with the contract by the club if the expectations with which a player was signed are not met in the employer's opinion (...) it is clear that what was expected of a player and which, subjectively, is not understood as achieved, cannot be, in any way, an element that justifies the termination and which, of course, is not a just cause as described in the FIFA Regulations.”[13]
Naturally, this does not mean that poor sports results are a direct and express consequence of disobedience, irresponsibility, lack of commitment, dedication and training, the club can terminate the contract with just cause, as will be revealed later.
- Only a serious breach of obligations qualifies as just cause for early and unilateral termination of the contract.
- Essentially, a contractual breach is understood as serious enough when, from an objective analysis, it would be unreasonable to maintain a contractual relationship, such as a loss of trust between the parties.
- The termination of the contract must be used as a last resort: ultima ratio.
Let us see by way of illustration some of the most recurrent scenarios in which the use of the concept of just cause has been used. This analysis must be divided into those occasions in which the cause is attributable to the club/association/federation and in those that are attributable to the player/coach.
It is important to keep in mind that the list of causes is not exhaustive, but is intended to illustrate some of the most frequent scenarios. We refer to club, association and federation, because the relationships between players and coaches are not limited to a club, but can also have a link with the federation of a country as a player or national coach.
Causes attributable to the player/coach:
1. Not attending training:
The obligation to show up and train that falls on a soccer player is fundamental. The relationship between a club and player is like any other of a labor nature, the player has to report to work on the days they are called by the coaching staff. As in other causes that we have highlighted, the termination of the contract cannot occur automatically, but the club must notify and record the absence of the player. In these cases, it is important to take into account the current regulations of each country or the agreement signed between the player's union (players' association) and the clubs, and especially the documentation obligations of the foul(s) and the informed of it. In fact, for some, the termination of the contract cannot occur immediately, but an internal disciplinary process must be exhausted within the club, such as the setting of a fine or penalty for unjustified absence and, if it persists, the Justified termination of the contract. Despite the fact that it is based on the scoop that the notification and warning phase of the conduct must always be exhausted, the CAS has let it be known that given the evident notoriety of the lack of intention to comply with the obligation, it is not necessary to notify the warning prior to the termination of the contract[14].
2. Disciplinary reasons:
If a player is penalized by a disciplinary body for any uncivic or unsportsmanlike conduct, the club must abide by the decision and, if applicable, refrain from fielding the player in official competitions or not, depending on the scope of the disciplinary sanction. Another scenario would be that the punishable conduct takes place during training, club activity or outside the sports facilities, where the club may impose sanctions in accordance with its internal disciplinary regulations, for example, in the case of physically assaulting a teammate during a workout or lunch. However, under all the scenarios presented, the termination of the contract must follow the principle of ultima ratio, which is why it has been a constant criterion of the Football Court and the CAS, that definitive termination can only be resorted to in case of recidivism[ 15], always taking into consideration that the least onerous measures should be taken to allow the continuation of the contract[16]. Hence the importance of each club having an internal disciplinary regulation that allows reasonable and proportional sanctions to be imposed on its players, such as the suspension of the contract and its effects while the impossibility of lining up in an official match lasts.
3. For not returning to work after vacation or injury:
Players' contracts normally cover more than one season, so at the end of the calendar of each sporting year, they are benefited with vacations, just like during the year-end holidays. The players have the obligation to return to training on fixed dates, varying the same depending on the international commitments that one player might have. The obligation to appear is essential, but it has been a constant criterion that a short delay in the return is not enough to terminate the contract, especially when there is no proof of having communicated a fixed date. For example, Professor Crespo Pérez points out that on one occasion, the FIFA Dispute Resolution Chamber considered that being a month late for training was not a severe time to terminate the contract, especially when the date had not been notified. of return[17]. This indicates the relevance of effectively notifying the return date, since the interpretation that may exist of a reasonable time of delay is very broad. Likewise, it is considered that prior to the termination of the contract, the player should be formally warned of his obligation to return to training[18].
Conclusion:
As we warned at the beginning, the ideal scenario is the respect of the contracts and termination at the expiration of the term. However, this is not always possible, so the relevant jurisprudence of the football legal system has been setting a trend that allows generating correct expectations of a possible dispute, despite the fact that each court has the power to decide freely. That is why the concept of just cause for termination of the contract has emerged, which despite being indeterminate, has created a trend that allows predicting and anticipating – with a high degree of certainty – the outcome of the litigation. Of the scenarios indicated, it should be noted that the obligation to warn the opposite party – be it the club or player – of the offense that could lead to the termination of the contract in advance, prior to making said decision, which we insist, prevails. It should always be the last measure to be taken (ultima ratio).
[1] The edition of the FIFA Regulations on the Status and Transfer of Players that has been taken into consideration is the August 2021 edition.
[2] CAS 2018/A/6041 Theofanis Gekas v. Akhisar Belediye Gleclik.
[3] CAS 2006/A/1062 Da Nhge Football Club vs. Ambroise Alain François Ndzana Etoga.
[4] Commentary on the Regulations on the Status and Transfer of Players, 2021 edition. Available at: https://www.fifa.com/legal/news/fifa-publishes-2021-edition-commentary-regulations-status-transfer -players
[5] CAS: 2011/A/2428 I. vs. CJSC Krylia Sovetov.
[6] However, the decision CAS 2013/A/3074 Club KS Lechia Gdańsk vs. Bedi Buval, it was determined that separating the player for a period of 8 days was not enough for the contract to be terminated with valid cause. On another occasion (CAS: 2019/A/6029 Akhisar Belediye Gençlik & Sport Kulübü Dernegi vs. Marvi Renato Emnes), he considered that 32 days was enough time to terminate the contract early.
[7] CAS: 2015/A/4286 Sebino Plaku v. Wroclawski Klub Sportowy Slask Wroclaw S.A.; CAS 2014/A/3642 Erik Salkic v. Football Union of Russia (FUR) & Professional Football Club Arsenal.
[8] DRC (FIFA) May 8, 2020: Hassamo; DRC of February 1, 2019: Samardzic.
[9] There are cases in which it is not necessary to put the club in default, especially when there are obvious reasons that lead to the conclusion that there is no intention to pay, such as: CAS 2018/A/5955 Spas Delev v. PFC Beroe-Stara Zagora EAD & FIFA.
[10] DRC (FIFA) of September 14, 2018, number 09180376-e.
[11] DRC (FIFA) of February 13, 2020, Advic; DRC (FIFA) of January 29, 2020, Boskovic; CAS 2016/A/4846 Amazulu FC v. Jacob Nambandi & FIFA & National Soccer League; FIFA DRC, dated February 26, 2020, marked with the number 19-01695/jaa. Adolfo Abad Barrios vs. Qingdao Huanghai Football Club.
[12] CAS 2009/A/1932 Sporting Clube de Goa v. Eze Isiocha.
[13] Juan de Dios Crespo Pérez and Ricardo Frega Navía, New comments on the FIFA regulations: with analysis of the jurisprudence of the DRC and the TAS (Editorial Dykison, S.L., Spain, 2015) 108-109.
[14] CAS 2017/A/5465 Békéscsaba 1912 Soccer vs. George Koroudjiev.
[15] CAS 2014/A/3706 Christophe Grondin v. Al-Faisaly Football Club.
[16] DRC (FIFA) of November 2, 2007, and; DRC (FIFA) of December 15, 2021: Alejandro Gil García vs. Moca Soccer Club.
[17] DRC (FIFA) of September 22, 2014.
[18] CAS 2013/A/3398 Petrolul vs. Stojmirovic.
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