By Thomas Geukes Foppen
During its meetings of 18 and 19 December 2014 the FIFA Executive Committee decided on several important amendments of the Regulations on the Status and Transfer of Players (RSTP) and the Procedural Rules. These amendments have been published in the FIFA circular no. 1468, dated 23 January 2015
. The most notable addition regards a new protective provision for football players (and in certain occasions even clubs) that have to deal with overdue payments. The majority of FIFA proceedings involve overdue payments of players, and as such FIFA is trying to reduce the massive amount of proceedings by introducing these new measures. The new article 12bis of the FIFA RSTP will come into force on 1 March 2015.
The current situation
As a sports lawyer I regularly deal with cases in which (most often) players are not being paid in a timely fashion, or in which they are not being paid at all. The current version of the RSTP requests a lot of patience from a player. According to Article 14 RSTP an employment contract can unilaterally be terminated by either party in the event of a just cause. The FIFA has implemented the minimum requirement that a player can unilaterally terminate his employment contract as soon as he has not received his salary for 3 months. Before terminating the employment contract the player must however have put the debtor club in default in writing.
As a consequence of the termination with just cause the player will be entitled to a compensation that will be calculated on the basis of the remaining value of the employment contract, as well as – obviously – the overdue salary. When calculating the compensation amount, FIFA will take into account the employment situation of the player at the moment of the FIFA decision (usually more than a year after the termination of the employment contract). If the player has found a new employer, FIFA will take the new salary into account when calculating the compensation amount.
The current FIFA regulations can cause very frustrating situations for football players. A ‘waiting period’ of 3 months is an extremely long period in a football contract. It furthermore regularly occurs that a club will pay one month’s salary after for example 2 months and 3 weeks. It then suddenly becomes rather difficult to convince FIFA that the player has a just cause to unilaterally terminate the employment contract. After dealing with a substantial amount of complaints, FIFA has recently made a serious attempt to resolve these problems by implementing the new article 12bis RSTP.
Most important amendments
The scope of Article 12bis RSTP is to oblige FIFA members to fulfil all of their payment obligations. The terms of this new article are without prejudice to the application of further measures in accordance with Article 17 RSTP (which article provides for the consequences of a unilateral termination without just cause). By means of Article 12bis RSTP FIFA has provided for the following measures:
- Clubs are required to comply with their financial obligations, in conformity with the terms stipulated in the contract signed with their players (and in the transfer agreements);
- In the event that a club is found to have delayed a due payment for more than 30 days, a player can put the debtor club in default in writing. The player must however grant the club a deadline of at least 10 days to comply with its financial obligations;
- If the club still does not comply, the player can request the FIFA to impose the following cumulative sanctions: a warning, a reprimand, a fine, and finally even a ban from registering new players for one or two entire consecutive registration periods.
The addition of Article 12bis RSTP provides a swift possibility for football players to pressure clubs into fulfilling their payment obligations. This is good news. One can however question if the FIFA will now be relieved of the substantial amount of claims that it already has to deal with. In my opinion this is not quite the case. FIFA will perhaps have to deal with even more (although short-term) requests of players subjected to overdue payments. One can only hope that FIFA will be able to handle these requests arising out of Article 12bis RSTP with the greatest possible (and necessary) speed.
The most important tip for players and players’ agents is to keep a close watch on the payments of their salary by the clubs. On day 31 a reminder letter must already be sent to the club. Subsequently, on day 41, a petition on the basis of Article 12bis RSTP can be filed with FIFA. A player should not refrain from making use of these new possibilities to urge non-paying clubs to fulfil their payment obligations.
This article has been written by Thomas Geukes Foppen
(Sports lawyer at Brantjes Advocaten).