Employment Agreements – form, content and valid conditions precedent
FIFA does not mandate any specific form of an employment agreement but has issued guidelines which provide for the minimum standard of an employment agreement between a player and a club. Specifically, by FIFA Circular 1171/2008, FIFA considers the essential requirements are:
- A written contract,
- Details of the Club and the Player,
- Place and date of when the Contract was signed,
- Signature of both the parties,
- A clear start and end date,
- Financial obligations
Similarly, most member associations of FIFA have also prescribed mandated standard employment contracts to ensure a balance of rights and interests between clubs and players.
It is however pertinent to note that in spite of the FIFA guidelines, the agreements entered into between a player and a club does not always meet the threshold of the FIFA Guidelines. In such an instance, courts have resolved to determine if the agreement signed by the parties contains the essentialia negotii of an employment agreement.
Notable jurisprudence
- Club L v Player J and Club M[1]
“In this context, the DRC deemed it appropriate to remind the parties of the basic elements of a valid and binding contract, namely an offer, consisting of an expression of willingness to contract on a specific set of terms, with a view that they are accepted by its counterparty and that all sides involved will become contractually bound, and an acceptance of said offer, consisting of an expression of absolute and unconditional agreement to all the terms set out in the offer, by means of a signature.” (Para II/11)
- Player T v Club B
“In this context, and in view of the Respondent’s allegations, the DRC judge first recalled that in order for an employment contract to be considered as valid and binding, apart from the signature of both the employer and the employee, it should contain the essentialia negotii of an employment contract, such as the parties to the contract and their obligations, the duration of the employment relationship, the remuneration and the signature of both parties.” (Para II/9)
- Stade Brestois 29 & John Jairo Culma v. Hapoel Kiryat Shmona FC & FIFA[2]
“A document that includes i) a date, ii) the name of the parties, iii) the duration of the contract, iv) the amount of remuneration and v) the signature of the parties includes essentiali negotii, and thus is considered a valid and binding agreement.” (Para 44)
- Hellas Verona FC v. Rade Krunic & FK Borac Cačak[3]
“Under the circumstances of this case, the Panel hesitates to conclude that the Offer contained all essentialia negotii, even under the generous interpretation in the above CAS rulings. First, the Panel notes that the Offer fails to specify the ‘duration of the contract’, in that it does not define the starting date. Indeed, according to Hellas Verona’s interpretation, the alleged contract could have started either during the 2014 summer transfer window or sometime during the 2015 winter transfer window. On the other hand, the Panel recognizes that in case of a contract which is subject to a suspensive condition, the uncertainty of the starting date is a built-in consequence of such condition.” (Para 82)
“Moreover, the Panel’s hesitation is reinforced when looking at the well-known and publicly available FIFA’s circular number 1171 dated 24 November 2008. The circular sets guidelines establishing minimum requirements for a professional football player contract ‘with the aim to cover the most important and essential rights and duties of both contractual partners (professional clubs and players)’. Based on this circular, a contract should include, inter alia, a clear starting date…” (Para 83)
“Furthermore, the contract should include the club’s obligation towards the player as well as the player’s obligations vis-à-vis the club.”
- Lukas Grozurej v. Pafos FC[4]
“The essentialia negotii of an employment contract are the date, the parties’ names, the subject of the contract, the duration of the relationship, the player’s remuneration, both parties’ signatures and the obligation of the parties to each other. If only secondary terms are still being negotiated between the parties a contract is deemed as having been concluded.”
One of the most enduring myths in football transfers is that a Player’s employment agreement with a club can be made subject to the successful passing of a medical examination. This is however a misnomer.
As per Article 18 par. 4 of the FIFA Regulations on the Status and Transfer of Players, a football club is precluded from conditioning the validity of a player’s employment contract to a successful medical examination. For the sake of clarity, Article 18 par. 4 of the FIFA RSTP provides as follows: “The validity of a contract may not be made subject to a successful medical examination and/or the grant of a work permit.” This obligation is mandatory and cannot be contractually waived. Therefore, a contract that is terminated this way, is considered to have been terminated without just cause.
This may prove to be detrimental to a football club who may then end up having to sign a player who is not medically fit to perform his obligations under the contract. Hence, as a possible work around, football clubs may either condition the validity of a transfer agreement to the successful passing of a medical examination. To also mitigate risk, football clubs may invite players for a medical examination before finalising the terms of the transfer and employment of the player. This is why it is often seen that a player’s medical examination is conducted at the final stage of a transfer before all documents are executed.
Notable jurisprudence:
- Murilo Rangel Barbosa v. Al Dhafra FC[5]
“In this context, the Chamber first reminded the parties of the clear and explicit wording of art. 18 par. 4 of the Regulations, according to which the validity of an employment contract cannot be made subject to a successful medical examination and/or the granting of a work permit. Referring also to the obligation of the parties to maintain contractual stability, the Chamber underlined that a club willing to engage a specific player should perform any medical examination prior to concluding any employment contract with the player. Any contractual provision contrary to art. 18 par. 4 of the Regulations shall be considered as invalid. However, this does not affect the validity of the entire contract. The duties of the parties towards each other under the employment contract remain valid and binding.” (Para 32)
- Kuwait Sporting Club v. Z & FIFA[6]
“Under article 18.4 of the FIFA Regulations, the validity of a contract may not be made subject to a successful medical examination and/or grant of a work permit and any clause to this effect would effectively be null and void. This nullity does affect the validity of the entire contract. The duties of the Parties towards each other under the Employment Contract remained valid and binding. Therefore, the condition for a successfully passed medical examination imposed by the Club for the enforcement of the Employment Contract should be considered as a non-written clause.” (Para 9)
“It is, and always has been the buying club’s duty to ensure for itself that the player they intend to contract is in good physical condition. The lex mercatoria between clubs and players has always seen buying clubs conducting medical examinations on players before concluding any employment contract with the prospective player.” (Para 18)
- Player A v. Club C[7]
“In this context, the members stated that the contents of art. 18 par 4 of the Regulations was of mandatory nature and could not be contractually amended or circumvented. The Chamber therefore stated that the reason of the Respondent to consider the contract invalid had no legal grounds.” (Para 26)
In cross-border football transfers, it may be a common and reasonable to condition the employment contract to the grant of a visa/work permit for the player. This is often mandatory under most employment and immigration laws and would be reasonable from the standpoint of the football club. However, Article 18 par. 4 of the FIFA RSTP outrightly prohibits this. Instead, the obligation falls squarely on the football club to undertake all steps necessary to procure the visa/work permit for the player in a timely manner. In this regard however, there is also an equal duty on the Player to provide all necessary information to the club to assist in the process.
Hence, a football club should ordinarily take all steps to procure the visa/work permit for a player prior to signing the employment contract, or otherwise in a timely manner after signing the contract so as to enable the Player to perform his obligations under the contract. Once the contract has been signed, and the competent authorities have not granted the player a visa/work permit, the employment contract will still be considered valid and binding. The Club will have no legal cause to terminate the contract under such an instance.
Notable jurisprudence:
- Club Hajer FC Al-Hasa v. Arsid Kruja[8]
“It is a general rule that the employer, the Club, must arrange the visa/work permit for the employee, the Player. Furthermore, according to Article 18.4 of the RSTP, it is explicitly stipulated that the validity of a contract may not be made subject to the granting of a work permit (it would not be a far reaching extensive interpretation if this provision is applied by analogy with respect to visa, too).” (Para 117)
“The employer is obliged to undertake the necessary steps to provide his employees with visa and/or work permit. It is very natural and is a basic principle of any labour law that an employer must provide his employees with visa/work permit, if necessary. By not providing the employee with visa/work permit, not even after being reminded to do so, the employer in effect is forcing the employee to leave. If an employer does not undertake the necessary action to provide his employee with a visa/work permit and if this prevents him from entering the country in which he is employed and therefore to start work, this could be seen as an unjustified breach of contract by the employer.” (Para 118)
“It is the duty of the club to make sure that the relevant application and required documents are duly and timely completed and submitted to the relevant authorities so as to allow the obtaining of the visa/work permit. Of course, the player must cooperate in full with the efforts to obtain visa or work permit. Thus, the player must put himself at the Club’s disposal and supply the prospective club with all necessary information and documentation in order to facilitate these tasks. However, it can hardly be expected that the initiative for collecting the required documentation must come from the player who is not national of the host country and is presumably not aware of the formal requirements.” (Para 122)
- Player A v Club B
“On account of all of the above, in particular the fact that the Respondent failed to obtain the relevant work permit in a timely manner as a result of which the Claimant was prevented from rendering his services to the Respondent during a considerable amount of time and the Respondent’s failure to remit the Claimant’s remuneration as from March 2017, the members of the Chamber agreed that the Claimant had just cause to terminate the employment contract on 14 June 2017.” (Para 23)
- Kehinde Mathias Oyewusi, Nigeria v. FC Postojna, Slovenia[9]
“To this end, the Single Judge once again reverted to the longstanding jurisprudence of the DRC and noted that it established, as a general rule, that clubs shall be liable to take all necessary administrative action to ensure that a player’s permit is granted (or renewed), allowing him to render the services under the employment contract. Nevertheless, the Single Judge also took into consideration that the jurisprudence is also solid to recognise that player shall provide assistance as can be reasonably expected in order to facilitate the administrative procedure.” (Para 105)
“Put differently, ‘as per the established jurisprudence, it is the club’s responsibility to obtain these documents (on time). As a result, a player will be considered to have a just cause to terminate their contract if the required permits are not available in good time. However, a player is expected to cooperate in completing the processes associated with obtaining these documents. Moreover, considering the principle that terminating a contract should be a last resort, a warning should be sent to the club ahead of any move to put an end to the contractual relationship.” (Para 106)
An International Transfer Certificate plays a key role in facilitating the change of registration of a player from member association to another member association. It is on the basis of this document that the player is registered with the new club and association, and will be eligible to play. Football Clubs however assume that such a burden of securing the ITC must be also passed on to the Player. This is not the case, and FIFA is strict on its stance that such administrative formalities lie solely on the football club. The failure of the Club to secure the ITC and register the player with the new association, will not invalidate the employment contract signed with the player. On the contrary, in such an instance, the player would have the right to terminate the employment contract for just cause.
[1] FIFA DRC Decision No. 0315187 of 12 March 2015.
[2] CAS 2015/A/3953 and 3954.
[3] CAS 2018/A/5628.
[4] CAS 2012/A/8008.
[5] FIFA DRC Decision of 9 June 2022, Barbosa.
[6] CAS 2008/A/1593.
[7] FIFA DRC Decision of 19 February 2016, no. 02151450.
[8] CAS 2017/A/5092.
[9] DRC Decision of 2 December 2021, Oyewusi.