ISSN 1748-944X
Labour Law, the Provision of Services, Transfer Rights and
Social Dialogue in Professional Football In Europe
Dr Robert Siekmann Director of the ASSER International
Sports Law Centre, The Hague, The Netherlands.*
Abstract
In many new or candidate Member States contracts for the performance of certain
services are used between professional football clubs and their players in addition
to, or even instead of, regular employment contracts. Under the rules and regulations
of the national football associations, professional football players should
be given employee status and players’ unions should be based upon the
membership of professional football players as employees.
Keywords
European Union - Employment - Sport - Transfer Systems - Social Dialogue - Bulgaria
Introduction
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In a study carried out by the T.M.C. Asser Institute on behalf of the
European Commission in 2004 (Siekmann et al., 2004) it emerged that in
many new or candidate Member States contracts for the performance of certain
services are used between football clubs and their players in addition
to, or even instead of, regular employment contracts. One of these candidate
Member States is Bulgaria, whose entry into the European Union is anticipated
for 2007. A seminar held in Sofia in November 2005, entitled ‘Players’
Contracts in Professional Football: EU Law and the Challenge for Bulgaria’,
confirmed that a complete shift had occurred from employment contracts
back to performance of services contracts under Bulgarian civil law. This is a remarkable
development as by this Bulgaria, a little over a year before it is set
to accede to the EU, has drifted away from the ‘EU sports acquis’
towards which it should in fact be heading.
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The main reason that countries prefer to use service contracts in professional
football is the fact that in this situation, clubs do not need to contribute
to the players’ pensions or pay social security contributions. From
a financial point of view these contracts are therefore net contracts
and the player simply has to take care of insurance and the building up
of a pension himself. Under these arrangements the player is regarded
as an artist. Football is thus treated as a special branch of industry
that simply cannot be compared with ordinary business. The illusion persists
that if a contract is not called an employment contract, it cannot
be an employment contract. The same applies to the contract’s
contents: if the contract says that the player performs services, then
that is what the player does, according to this line of reasoning. But
this is simply pulling the wool over one’s own eyes to the detriment
of the players.
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Fact not Form
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It is not the format, but the facts which are decisive. To pursue the
‘artist’ analogy a player may give a brilliant acting performance
or follow his instincts as if he were a ballet dancer, but the coach decides whether and in what position he plays. This is clearly a relationship
of authority, which is a characteristic that the EC Treaty links with
the free movement of workers, whereas the freedom to perform services
is something completely different. Services are not performed on the basis
of instructions of the client or under the authority of the client. Furthermore,
there can be multiple clients at any one time or a succession of clients.
This would imply that a player during one single season would first play
for a particular club and then for another and then for a third, but this
is never the case because there are too few transfer periods to make this
possible. Put another way, transfer periods inherently conflict with the
notion of service contracts: if they were service contracts, there would
not be any transfer periods at all.
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In any case, most football players work hard and follow the coach’s
instructions to the letter; and even most ballet dancers are not self-employed,
but are employees of a ballet company. Typical service providers are tennis
professionals who hire and fire their own trainers, organise their own team of
supporting staff and are contracted per tournament by the tournaments’
organisers. Service providers can thus be found in individual sports like
tennis, but not in team sports like football
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There is a second aspect of this case. In Bulgaria a system of competition
rights, also known as federation rights, operates. This involves the registration
and admission of players and, more particularly, the granting of the player’s
pass, which establishes the right of a player to compete in a competition.
The person who owns this pass or these rights de facto owns the
player’s transfer rights. Competition rights are the final element
of using service contracts, for service contracts provide players with
the absolute freedom to stay or go; but if the players no longer own these
rights themselves they cannot go anywhere. In other words, they cannot
join a different club. The rights are owned by their club, or by their
agent, or even by a players’ fund (investment fund). In Brazil,
for example, agents literally carry players’ passes in their pockets,
or it may even be that several advisers have rights over the same individual.
Players’ funds, not an entirely unknown phenomenon in Europe, help
clubs to attract players but the clubs hold on to the transfer rights
themselves because they want to retrieve their investment or even see
a return. The player, however, only has a contract with the club. The
club has assigned the transfer rights to the fund or can only let the
player transfer with the fund’s permission. In this way, the player’s
freedom of movement is severely restricted, regardless of whether the
restriction takes the form of a player’s pass or a players’
fund.
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In the case of the player’s pass, the player has at some point
assigned the pass to his agent(s). This is actually a void act, as the
player’s pass exclusively serves as the player’s ID and entitles
him to take part in competition. For this reason, the pass remains the
property of the national football federation, just like an ordinary passport
remains the property of the state. If it falls into the hands of a third
party, that is illegal. Such parties are not then allowed to do business
with it and dispose of the player’s deployability. A person cannot
be the property of another person; not even by his own consent, and not
even when this consent was not forced. It goes against the Universal Declaration
of Human Rights and all rights and instruments deriving from it. This
involves a principle of jus cogens from which, under the rule of
law, no-one can deviate.
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Towards Collective Agreements in Football?
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A third aspect of this case concerns the feasibility of a social dialogue
between management and labour, to exist for the purpose of (for example)
drawing up a collective agreement on employment status. On the basis of
service contracts a social dialogue is not possible because the player
is legally a self-employed person who should in principle be able to give
instructions in return to the other party (the club) and which have to be
carried out as performance. In the case of an employment contract, the
focus is on the employee as a person, whereas in a service contract the focus
is on the service to be performed. The fact that both notions –
employment contract on the one hand and service contracts on the other
– are included in the EC Treaty separately obviously has a reason.
It is a reflection of general international principles of labour law that
this distinction is made. These principles do not permit employees to
remain unprotected, as if they were their employer’s plaything.
In the first and the last instance, this is a question of a philosophy
of norms and values surrounding labour in a civilised world.
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Should the parties wish to regulate matters differently through the introduction
of a third option (in addition to or somewhere in between the employment
contract and the service contract) then a collective agreement would be
the most appropriate instrument for achieving this. A special “football
contract” should in principle be possible provided this is not contrary
to public policy, but it is difficult to imagine how this would work now
that in the team sport of football there can de facto only be a
relationship of authority between the club and the player. It is equally
difficult to imagine how the handling of players’ passes and transfer
rights could be legalised by means of a collective agreement.
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In any event at the European level a Social Dialogue is still very much
in its infancy because the employers have yet to organise themselves as
such whereas on the employees’ side there is the world players’
union FIFPro. On the employers’ side, self-appointed candidates
are currently the “League of Leagues” (Association of European
Union Premier Professional Football Leagues/EPFL) and the G-14 group of
clubs.
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Conclusion
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Under the rules and regulations of the national football associations
in the new EU Member States, professional football players should be given
employee status, that is employment contracts which would considerably
strengthen their position with regard to their clubs by improving their
legal position and affording better financial protection. Where this is
not already the case, existing and/or future players’ unions should
be based upon the membership of professional football players as employees.
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* Presentation at FIFPRO Conference on “10 Years After Bosman: Should
we have another Bosman case, or can we avoid another Bosman case?”.
Council of Europe, Palais de l’Europe, Strasbourg, 14 December 2005.
References
Siekmann R, Branco Martins R, Drolec T and Vaisgauskaite D (2004): Promoting
the Social Dialogue in European Professional Football (Candidate EU Member States)
(The Hague, T.M.C. Asser Institute), available at
http://www.sportslaw.nl under “Research”: Social Dialogue
II.
Siekmann, Robert, "Labour Law, the Provision of Services, Transfer Rights and
Social Dialogue in Professional Football In Europe",
Entertainment and Sports Law Journal, ISSN 1748-944X, April 2006, <http://go.warwick.ac.uk/eslj/issues/volume4/number1/siekmann/>