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The decision by a German court that former goalkeeper Heinz Müller had obtained an indefinite-term contract after his three-year contract was prolonged by his (former) club, should serve as a wake-up call for professional football, where currently all labour contracts have a fixed term, even though this contradicts European Law.

According to FIFPro, the only sound and proper way to approach this issue is through social dialogue.

 

Heinz Müller is a former goalkeeper of 1. FSV Mainz 05, a German premier league club. His first contract ran from 1 July 2009 until 30 June 2012, and was extended in 2011 until 30 June 2014. During the 2013-2014 season, the Mainz management informed Müller that his contract would not be extended at expiration in the summer of 2014. The contract contained a clause which automatically guaranteed a one-year extension if the goalkeeper were to play a certain amount of matches. Yet, that was practically impossible for Müller, as his coach had put him on the bench and only allowed him to train with the reserve team. The goalkeeper tried to mutually terminate the contract with a settlement, but club management did not accept that. This prompted Müller to go to court.

Recently, the Mainz labour court decided that Müller had to be awarded an indefinite-term contract after his first three-year contract was prolonged by FSV Mainz 05. This resulted from EU Council Directive 1999/70 that is implemented in every EU state. The implementation can differ from state to state, but there will always be a moment when fixed-term labour contracts convert into indefinite-term contracts. In this case the contracts of Heinz Müller met the requirements of German law, the decision is completely correct.

However, it is strange that football is only now confronted with this phenomenon as the Council Directive is almost sixteen years old.

This can be explained by the ignorant and arrogant attitude of sports governance. Even now Mainz 05 President Harald Strutz maintains that the ruling is incorrect and that football is a different branch from any other. The President seems to forget that the European Court of Justice (ECJ) decided in the Bosman case in 1995 (!) that the relationship between a professional player and his club is a labour relationship just like that of any other worker in the European Union.

After the Bosman case FIFA and UEFA negotiated new transfer regulations with the European Commission and came out of it successfully. The Commission had required that new regulations were to be in accordance with EU-law, yet FIFA and UEFA convinced the Commission that professional football needed special provisions because of the specificity of the sector.

The Commission agreed to this provided that those specificities were agreed upon with the representative organisation of the workers, FIFPro. In 2001 the new FIFA Regulations on the Status and Transfer of Players came into force. The main specificities were the protected period for players' contracts, the transfer windows and the prohibition to terminate a contract unilaterally during the season.

On European level there has been no agreement to exempt football from EU Council Directive 1999/70, although this could have been an option. The directive clearly opens the opportunity for agreements between the social partners in this aspect.

On national level there have been countries whose social partners realised their situation and concluded a collective bargaining agreement in which this matter was solved. In these jurisdictions, such as the Netherlands, the parties agreed on the fact that football contracts did not convert in indefinite-term contracts. In exchange for giving up this right, the workers received a substantial financial compensation.

FIFPro's Head of Legal Department, Wil van Megen, explains: "Looking at the Müller case ruling, football governance is now confronted with a harsh reality. Neglecting European law cannot continue. It seems that no lessons have been learned from Bosman."

"Countries that thought they could get away with neglecting European Law, now need to decide on what to do. It is very risky to await the appeals in the Müller case as the first instance decision seems to correctly follow European Law."

Moreover, in France there are similar proceedings pending in an even later stage of the process. The French Court of Appeal has to decide on whether former player and assistant coach Michel Padovani should have been awarded an indefinite-term contract during his seventeen year period as a trainer at the club. Also in France the application of the Directive appears to be imminent.

Several countries have tried to create special sport laws or provisions , in order to prevent the use of indefinite contracts. Van Megen: "The question is whether this is possible."

"Looking at the text of the Directive this does not seem to be a right solution. The authority to exempt certain professions from the directive is exclusively given to the social partners and not to any government."

"Therefore it can be expected that these laws will be declared illegal."

Another example is the Mohamed Dahmane case. In this case the Belgian court declared a sports law deviating from regular labour law illegal in a very profound and sophisticated manner, adding that a professional athlete should be treated in the same way as a regular employee.

In other countries, such as Poland, the indefinite-term contract is circumvented by an attempt to provide players with so-called service contracts. The rationale behind this is that players cannot invoke their rights as workers when they do not have a labour agreement. However, this legal construction will not help, as the European Court of Justice (ECJ) already decided more than 25 years ago on a European standard for the definition of a worker.

Van Megen: "The only sound and proper way to approach this issue is through social dialogue."

"FIFPro and its members are open to discuss the matter and are willing to find solutions that are acceptable for all parties. It is time for the European football authorities to wake up and show what good governance really means."

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