In a bid to improve the contractual stability and certainty between professional football clubs/associations and football coaches, the FIFA Council recently approved amendments to the FIFA Regulations on the Status and Transfer of Players, Ed. Jan, 2021 (“FIFA RSTP”). The said amendments, which have been included under Annex 8 of the FIFA RSTP can be considered to be a monumental move in providing football coaches with a substantive law to protect their legal interests against football clubs and associations, which previously was non-existent.
Prior to the amendments, the main issue that plagued the relationship between football clubs or national associations and coaches was the absence of an independent legal framework that expressly governed the employment relationship between a football coach and the employer. While the earlier editions of the FIFA RSTP dealt with the employment issues faced by football players, it failed to recognise the precarious position of football coaches in relation to football clubs. It did however, provide coaches the option of approaching the FIFA Players’ Status committee (“FIFA PSC”) in cases of employment disputes with football clubs/associations provided the dispute was of an international dimension (c.f. Article 22 lit. c) of the FIFA RSTP).
The lacuna in the regulations led to a lot of ambiguity with regards to the applicable law to deal with employment related disputes between football coaches and clubs. Unlike players, football coaches were left bereft of any law and were left vulnerable to exploitation by clubs and associations. Having no other recourse, football coaches would often invoke the FIFA RSTP indirectly on the basis of “ubi eadem legis ratio, ibi eadem legis dispositio” (i.e where the reason is the same, the law is the same) to protect their rights. However, on multiple occasions, the Court of Arbitration of Sport (“CAS”) has disregarded the applicability of the FIFA RSTP to employment disputes between a football club and a coach. In the case of CAS 2015/A/4161 Vladimir Sliskovic v. Qingdao Zhongneng Football Club, award of 28 April 2016, the Sole Arbitrator stated that, “Although Article 2.2 of the FIFA RSTP implies without necessarily requiring professional players to have written contracts with their clubs (CAS 2014/A/3739 & 3749, para. 159), the same cannot be said for coaches, whose contracts – apart from the issue of the FIFA PSC’s jurisdiction - are not governed by the FIFA RSTP”. Similarly, in the case of CAS 2008/A/1464 Futebol Clube do Porto v. Jacobus Adriaanse, the CAS Panel noted that while Article 22 of the FIFA RSTP provided FIFA PSC with the competence to hear employment disputes between a coach and a football club, it did not mean that the substantive rules that apply to players are applicable to coaches as well. Furthermore, in the case of Jose Carlos Ferreira Alves v. Al Ahli Saudi Club CAS 2017/A/5312, the Sole arbitrator noted that, “…The FIFA RSTP are however not directly applicable to the matter at hand because these regulations solely govern the employment relationship between clubs and players and not between clubs and coaches.”
Hence, due to the absence of specific FIFA regulations on coaches coupled with the joint application of Article 57 of the FIFA Statutes and R.58 of the CAS Code, Swiss labour law would often be applied to employment disputes between coaches and football clubs. The application of Swiss labour laws to employment disputes would often lead to complications, since Swiss labour laws are less flexible in comparison to the FIFA RSTP which has maintained a fine balance between contractual stability and the freedom of movement of players.
Therefore, the inclusion of separate regulations for coaches under Annex 8 of the FIFA RSTP on 1st January, 2021 was indeed a step in the right direction in order to guarantee football coaches the same rights provided to players under the FIFA RSTP. The regulations were introduced with a three-fold goal in mind -
a. To increase contractual stability,
b. To increase transparency, and
c. To ensure that coaches were paid within time.
Furthermore, the key features of the regulations are as follows:
1. Definition of “coach” (Definition 27 of the FIFA RSTP, ed. 2021) – It has been provided as a person whose “employment duties consist of one or more of the following: training and coaching players, selecting players for matches and competitions, making tactical choices during matches and competitions”. It further provides that such person shall be required to hold the necessary coaching licence in accordance to the national/international licensing regulations.
2. Form of employment contracts (Article 2 of Annex. 8 of FIFA RSTP, ed. 2021) – It has been provided that all contracts must include clauses relating to rights and obligations of the parties, duration of contract, and the specific remuneration due to coaches in order to be valid.
3. Contractual stability (Article 3, 4, 5 & 6 of Annex. 8 of FIFA RSTP, ed. 2021) – It provides for provisions relating to respecting the contract, termination, and consequence of unilateral termination of contracts.
4. Overdue payable to coaches (Article 7 of Annex. 8 of FIFA RSTP, ed. 2021) – This has been included to reinforce contractual stability by ensuring that the clubs and associations abide by their financial obligations towards coaches as per the terms of their contract.
5. Execution of monetary decisions (Article 8 of Annex. 8 of FIFA RSTP, ed. 2021) – This serves as a deterrence provision for clubs, associations and coaches in case they fail to comply with the orders of FIFA decision-making bodies, thus, further adding to transparency and contractual clarity.
As the above-mentioned regulations are comparatively new, it is difficult to assess the true effectivity and applicability of the regulations over employment disputes between coaches and football clubs. Albeit, from a prima facie analysis of the regulations, the following shortcomings are evident:
1. Ambiguity in the definition of a “coach” – In spite of the definition providing that a “coach” includes a person employed in a professional club/association for the purpose of “training”, there is ambiguity as to whether this includes a ‘physical trainer’. This ambiguity arises due to the fact that CAS has specifically laid out in CAS 2009/A/2010 Eduardo Julio Urtasun v. FIFA that, “This definition of the term “coach” is not comparable with the activity of a physical trainer, especially when the physical trainer works under the instructions of a coach as member of a technical team lead by the coach. The physical trainer is only in charge of the fitness (or physical condition) of the players he works with.” The authors are of the view that the definition of “coach” as provided under the current FIFA RSTP is unclear as to whether “training” includes training for strength and fitness purposes, which is the job of a physical trainer. Hence, a ‘physical trainer’ may be excluded from the ambit of these regulations.
2. Non-inclusion of other members of coaching team – The regulations fail to recognise the role of other members that are part of the coaching team and their legal relationship with the club. Such members include academy directors, rehabilitation trainers, masseurs and they have been left out due to the restrictive nature of the definition of a “coach”.
3. Financial barrier for coaches – The regulations fail to provide coaches with an easy and affordable access to justice. The FIFA Rules governing the Procedures’ of the Player Status Committee and the Dispute Resolution Chamber expressly provide that in DRC proceedings relating to disputes between a club and a player in relation to the maintenance of contractual stability and international employment related disputes, the proceedings are free of charge for the player. This financial barrier has thus created difficulties for coaches to claim their rights before FIFA in cases of ‘overdue payables’ by the club or in regard to the breach of contract by the club without just cause.
In spite of the above shortcomings, the authors are of the opinion that the regulatory framework provided for coaches offers much needed respite for coaches, who were previously left under the bus to fend for themselves. For the first time, football coaches have been acknowledged as an ‘employee’ akin to that of a football player at a club. This significant step has raised the bargaining position of coaches and indirectly served as a deterrence mechanism to protect the legal rights and interests of coaches.
While it is true that the popularity of football largely depends on the players and their well-being, one must not forget that the development of the game depends on football coaches and other members of the backroom staff. They are the very engine and wheels of the bus and FIFA must be commended for taking measures to ensure that the bus continues to forge ahead by recognizing the vital role of football coaches in the development of the game and bringing legal certainty to their employment relations with football clubs.
* We would like to thank Aditya Shankar (law student, Christ University, Bangalore) who is currently doing an internship with Sensato Sports Law, for his invaluable contribution.