Introduction
The principle of FIFA as contained in Article 13 of the RSTP is that, generally, a football contract cannot be unilaterally terminated by any of the parties. Thus, It can only become terminated when (i) the contract expires, or (ii) when both parties mutually agree to.
Apart from the general principle above, the only exception where a party may unilaterally terminate a contract without consequences is where there is a JUST CAUSE.
What is ‘Just Cause’?
The term ‘Just cause’ refers to the exceptions or circumstances recognised under FIFA Regulations and previous Decisions, that may allow a club or player terminate the employment contract between them, without any punishment or consequence. Any unilateral termination outside of “just cause” would attract monetary and/or sporting punishments against the defaulting party.
For example, in the DRC Decision of 2nd November 2007 No 31113, it was confirmed that a clause which permitted the club to unilaterally terminate the contract at any point in time and having to pay a compensation, 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.)
In football, ‘just cause’ must involve a cogent reason for the termination of the contract by either party. Article 14 of the RSTP states that either party can choose to terminate a contract without any consequences where there is just cause. It is important to note that “just cause” exists for clubs, as well as Players. The first part of this article however shall be based on termination of contracts based on “just cause” by clubs.
‘Just Cause ’ by Clubs
Clubs may be allowed to unilaterally terminate the contract of their players, only where ‘just cause’ exists. The common circumstances which the issue of ‘just clause’ by clubs have arisen, will be discussed below.
a. Poor performances
In Nigeria, it is common practice that clubs unilaterally terminate players’ contracts based on poor performance; and wrongly use the word “released” in their official statements. However, based on the longstanding jurisprudence of FIFA, poor performances cannot be a just cause for the termination of a player’s contract. For example, on November 26 2004, the Dispute Resolution Chamber of FIFA decided that the clause in an employment contract which stated that the club may terminate the employment contract when the player’s performance no longer meets the club’s requirement, cannot be defined as just cause and is therefore not valid (DRC Decision 26th November 2004, No. 114534.). In that case, the parties signed an employment contract valid from 1st November 2003 until 31st October 2005. In line with Article 2.8 of the contract, the club was entitled to unilaterally terminate the contract upon a 15-day written notification of contract termination for reasons of a disciplinary nature or linked to a decline in the player’s performance which fails to meet the club’s requirements. On 1 April 2004, the player was notified in writing of the premature termination by the club of his employment contract. According to the relevant document exhibited before the DRC , the player’s contract was terminated due to a decline in the player’s performance and his inability to meet the club’s performance requirements. The DRC decided in that case that no just cause existed.
Also, in the DRC Decision of 28th July 2005 No 75975, the DRC also decided that a player’s lack of performance is no just cause for a club to unilaterally terminate an employment contract.
In summary, clubs are not allowed to terminate the contracts of their players based on poor performances. As a footballer, whether you truly have a dip in form during the season and your club eventually gets relegated, or your club makes up an accusation of “poor performance” against you; the club cannot unilaterally terminate your contract as there would be no just cause.
As a club owner or Administrator, it is advisable that the club considers finding an amicable way to agree with the player for a mutual termination of his/her contract where there is poor performance. Alternatively, the Club may offer the player to other football clubs who may be interested in his/her services.
b. Injuries
It is also important to note that a player’s contract cannot be terminated based on the circumstance that the player was injured; most especially where such injury was sustained in the course of offering his/her services to the club. In fact, it does not matter if the injury period is lengthy.
It is widely known and accepted that injures are part of the game of football. Thus, it is the duty of the club to take care of a player who gets injured while the player is under contract with the club. It would be a breach of employment if the player’s contract is terminated based on injuries. As stated by the DRC in the decision of 13th May 2005 No 55230, the DRC decided 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 in fact suffered in the course of the player’s service to the club, and so the club was to responsible for covering the cost of treatment as well as the costs incurred during the rehabilitation process.
c. Absence
According to the DRC, absence of a player can constitute ‘just cause’ for the termination of his contract by the club. However, the absence must be lengthy for it to be enough to constitute ‘just cause’.
Also, it would be important to establish whether or not official matches were scheduled during the player’s period of absence. In a DRC decision of 10th June 2004, the DRC noted that during the one month when the player stayed away from his employer club, no official matches were scheduled in the national league of his national football federation. Therefore, the absence of the player did not pose a serious problem to the club. In such a circumstance, rather than a termination, what a club should do is to fine or suspend the player. It is in circumstances where such an absence is lengthy or repeated so often that the club cannot be reasonably expected to put up with such behaviour, that the club can then go ahead to unilaterally terminate the contract (after having previously served a notice of absence on the player).
A recent example is the sacking by Sunderland Football Club, two of its players (Papy Djilobodji and Didier Ndong) during the course of 2018. Papy Djilobodi had indicated an interest in leaving the club, and so had an agreement with the club that he be allowed to spend the month of July on a voluntary unpaid leave. After the period elapsed and the player’s proposed transfer had broken down, the player initially refused to return to the club. It took notices of absence written by Sunderland to the player before the player eventually resumed. At that point, the player failed his fitness test and the club terminated his contract for the prolonged absence.
Conclusion
FIFA’s Regulations look to ensure that clubs and players honour the contract between them, by prohibiting premature termination of such contracts. It is only where there exists a “just cause” that such contracts can be unilaterally terminated before their expiration.
“Just cause” for clubs as discussed above are the most common where disputes have arisen. Thus, the list above is by no means limited to those. It should be borne in mind that other circumstances where any of the contractual parties cannot be reasonably expected to continue with the employment relationship, would likely be adjudged as “just cause” by the FIFA Dispute Resolution Chamber.
Written by: ERIBAKE AYOMIDE O.
Source: Sportlicitors