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Clubs are overprotected. FIFPro lawyer Wil van Megen came to this conclusion after studying the current situation regarding the stability of contracts. According to him, players need more protection.

 

During the Social Dialogue Plenary Meeting in Brussels on Monday 28 February Van Megen gave a presentation about contractual stability, after the ECA and EPFL had placed this topic on the agenda. The FIFPro lawyer used the occasion to make clear why in his opinion clubs enjoy much more protection than players. Too much protection.

 

Van Megen pointed out the fact that EU Law determines that a football contract is an employment contract. The FIFA Regulations on the Status and Transfers of Players (RSTP) follow EU Law, but FIFA, in consultation with the European Commission, have added some special provisions which are related to the special nature of the football contract, namely a contractual period of stability of three years, sporting sanctions, a transfer window and a ban on negotiating with another club if there is still more than six months remaining of the current contract.

 

Some provisions are applied differently than what was discussed at the time the provisions came into effect, such as the establishment of a new period of stability with the extension of a contract. ‘Why, after three years, when a contract is extended should a new period of stability of three years apply?’, Van Megen asks himself. ‘There has never been an agreement made about a new protected period during the renewal of a contract.’

 

According to Van Megen, as a result of the FIFA Regulations there are few cases of players who break their contract within the protected period. Footballers who did this were all punished: they received a (hefty) fine and sometimes also a suspension.

 

On the other hand there are many clubs which do not keep to contracts. The majority of the cases which are received by the FIFA DRC concern clubs that have not paid players their salaries. However, it rarely occurs that sporting sanctions are imposed on a club for this.

 

Players who terminate their contract in accordance with article 17 of the FIFA Regulations, must, in accordance with these regulations and EU law, pay compensation on the basis of objective criteria. The principal criterion is the residual value of the contract. This is confirmed in the Webster case. But, as Matuzalem and Essam El-Hadary experienced, on appeal the CAS introduced a new criterion: the market value or replacement value, a completely subjective concept, which has no association whatsoever with article 17.

 

‘It is noticeable that until the present time there has still not been any case of a player who has been awarded compensation that is higher than the residual value of his contract. This illustrates that players are dealt with differently than clubs.’

 

Finally Van Megen makes the following list: ‘The clubs already enjoy extra protection due to the built in specifications of article 17 of the FIFA RSTP. These must be considered as restrictive. The FIFA DRC has drawn up a compensation table that compensates clubs if the player terminates the contract within the period of stability. There is a matter of a protected period with the extension of a contract, without there ever having been an agreement reached on this. The CAS gives the clubs extra protection by not conforming to EU Law and by wrongfully applying its own rules.’

 

‘All these provisions and examples are to the advantage of the clubs’, continues Van Megen. ‘That's why I dare to maintain with full conviction: clubs are overprotected!’

 

 

 

 

 

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