The framework of professional footballer contracts is set out in Chapter IV of the Regulations on the Status and Transfer of Professional Footballers. The circumstances in which, and the manner in which, the contract may be terminated are dealt with in Chapter VI of the Regulations, headed “Termination of the Contract and Its Consequences”; there both the grounds conferring a right of termination on the parties and the principles that must be followed for a termination to become valid are set out. The ways in which the contract may come to an end otherwise than by termination are addressed separately in the note entitled Ways in Which a Professional Footballer Contract Comes to an End.
The Regulations contain no free-standing and direct definitional provision for unjust termination. Nevertheless, the consequence of unjust termination arising where a termination does not rest on a just cause or is effected without compliance with the prescribed procedure is likewise regulated in that Chapter VI. Termination of the contract without justification by the footballer and termination of it without justification by the club are distinguished from one another in that chapter, and the legal and sporting sanctions to be applied are determined separately for each of the two possibilities.
Below we assess, with a practitioner’s eye, the grounds of termination for just cause available to the footballer, the procedural rules that differ for each ground, and the consequences flowing from a termination that has no just basis.
The Concept of Termination and Its Function in Football Contracts
Termination is a formative right that brings contractual relationships giving rise to continuing obligations to an end with effect for the future. The party exercising that right may end the contract without seeking the consent of the other party. As regards the disappearance of the contract, whether the termination is regarded as justified or not makes no difference to the outcome; the relationship comes to an end in any event.
The distinction emerges at the point of the consequences of the termination. From the party who terminates the contract without justification, or who leaves the other party with no choice but to terminate, compensation for unjust termination may in certain conditions be claimed. As a feature peculiar to sports law, sanctions of a sporting nature may also be added to that pecuniary consequence in professional footballer contracts.
Grounds Entitling a Footballer to Terminate for Just Cause
The footballer’s right to terminate for just cause is regulated in Article 28 of the Regulations. Under that provision, the footballer may terminate the professional footballer contract for just cause in the following circumstances:
- Failure by the club to perform the other obligations arising from the contract
- Failure by the club to make payments to which the footballer has become entitled, such as Monthly Salary, Guaranteed Salary, Signing Fee (Advance), Match Fee and Bonuses, and/or infringement of his social security rights
- The situation referred to in practice as sporting just cause; that is to say, where a professional footballer who has completed the age of 23 has been fielded, at the close of the season, in fewer than 10% of the club’s official matches, and that picture is incompatible with the footballer’s circumstances and the conditions of the particular case
The existence of one of the grounds listed is not sufficient in itself. In all of these situations there are certain procedural rules with which a footballer wishing to terminate his contract must comply.
For a more detailed examination of the scope of footballers’ claims, when they fall due, their enforceability and the legal routes that may be pursued for their recovery, reference may be made to the note entitled Recovery of Professional Footballers’ Claims from Clubs.
The Procedure for Termination for Just Cause
Where at least one of the above grounds has materialised, the first step for the footballer is to send the club a formal notice by way of warning, requiring that the situation constituting the just cause for termination be remedied. If the breach continues notwithstanding the notice, the footballer may terminate his contract by serving on the club, through a notary, a notice containing his intention to terminate. A copy of that notice must also be sent to the TFF for information. Within this general framework, the periods to be applied differ according to each ground of termination for just cause.
Where Payment Is Not Made or Social Security Obligations Are Breached
- The first step for the footballer is to send a formal notice through a notary both to his club and, for information, to the TFF, requiring that the remuneration to which he is entitled be paid within 30 days and that his social security rights be met within that same period.
- If, despite the period of grace allowed, the club does not make payment and/or does not meet its social security obligations, the footballer’s right of termination may be exercised only during a period of 7 days running from the expiry of that period of grace.
- The TFF forwards the formal notice sent to it under this just cause to the club by fax or by another means within 7 days at the latest of the date of service. The periods relating to this ground of termination begin to run from the date of service of whichever of the TFF notification and the notarial notice was served on the club first.
The Course to Be Followed Where Other Obligations Arising from the Contract Are Not Performed
- The footballer must, by a formal notice sent to the club through a notary, state that the breach is to be remedied or the obligations performed within an appropriate period of not less than 7 days.
- If, despite that period of grace, the club does not perform its obligations and does not remove the breach, the footballer may terminate his contract only within 7 days of the expiry of the period of grace.
The Course to Be Followed in a Termination Based on Sporting Just Cause
- The footballer must be a professional over the age of 23.
- At the close of the season, the number of official matches in which the footballer has taken part must fall below 10% of the total official matches played by the club.
- The resulting picture must be incompatible with the footballer’s circumstances and the conditions of the particular case.
- The declaration of termination must be made before 15 days have elapsed since the club’s last match of that season, and in compliance with the procedure described above.
Unjust Termination and the Legal Consequences It Entails
The first paragraph of Article 30 of the Regulations attaches a two-tier consequence to unfounded terminations effected within the protected period:
Regulations on the Status and Transfer of Professional Footballers, Art. 30(1)
“Where professional footballer contracts are terminated within the protected periods by the footballer without relying on a just cause, or by the club with just cause otherwise than in the situations listed in subparagraphs ‘a’, ‘b’ and ‘d’ of Article 27(1), the sporting sanctions determined below shall be applied in addition to the obligation to pay compensation.”
The conclusion to be drawn from the provision is this: the party left in the unjustified position in the termination of a professional footballer contract becomes liable to pay the other party a sum known in practice as compensation for unjust termination.
The Concept of the Protected Period
The definition of the concept of the protected period, which is decisive in the application of the provision, is given in subparagraph (h) of Article 2 of the Regulations. The definition is divided in two according to the age at which the footballer signed the contract:
- In contracts signed by the footballer before completing the age of 28, the period of three years or three seasons following the entry into force of the contract (whichever occurs first being taken as the basis),
or
- In contracts signed by the footballer after the age of 28, the period of two years or two seasons following the date of entry into force (again, whichever comes first being taken as the basis)
constitutes that scope.
Consequences Arising for the Footballer
The provisions on unjust termination come into play in respect of a footballer who terminates his contract within the protected period without a just basis. The same consequence is applied against the footballer where the contract has been terminated by the club with just cause; situations such as the footballer’s illness, a final disqualification and a match ban are excluded from this rule.
Where it is established that the termination was effected by the footballer without justification, the consequences that will arise may be grouped under three heads:
- Payment of compensation for unjust termination
- The imposition of sporting sanctions
- Consequences relating to the footballer’s transfer to another club
A detailed examination of the sanctions directed at the footballer in the event of unjust termination is contained in the note entitled Unjust Termination of the Contract by a Professional Footballer.
Independent Legal Assessment
In footballers’ terminations, the factor that determines the fate of the dispute is most often not the existence of a just cause but the procedure followed in relying on that cause. Even where the salary claim has indisputably fallen due, if the content of the formal notice is deficient, or if the declaration of termination has fallen outside the 7-day window following the expiry of the period of grace, the footballer may pass from a justified to an unjustified position. For that reason the timetable must be established on a documentary basis before a decision to terminate is taken.
The calculation of the protected period is equally critical. The age at the date on which the contract was signed determines whether the period is three years or two, and that distinction directly affects whether sporting sanctions will be imposed. In files where sporting just cause is to be relied upon, verifying the 10% threshold in advance against the official match statistics removes the risk of an error that is difficult to make good afterwards.
In a concrete termination process the following points should be clarified first:
- Documenting that the formal notice has been duly served both on the club and, for information, on the TFF
- Determining the moment at which the period of grace begins by reference to whichever of the notarial notice and the TFF notification was served first
- Making the declaration of termination through a notary within the 7-day period following the expiry of the period of grace
- Verifying that, in the case of sporting just cause, the age of 23, the 10% proportion and the 15-day period running from the last match are all satisfied together
- Calculating the protected period by reference to the age at the date of signature of the contract
- Analysing in advance the risk of compensation and sporting sanctions in case the termination is held to be unjustified
Independent Legal provides advisory services and conducts litigation in disputes concerning the termination of professional footballer contracts, the recovery of claims and compensation arising from termination.