Analysis of the FIFA document on COVID-19

The cases of Argentina, Great Britain, Spain, Colombia and Germany

Updated 04/13/2020

Written by

Pablo Bruera

lawyer

Mail: derechosdelfutbol@gmail.com

Whatsapp: +54 9221 618-7294

The document is structured as follows:

1. Introduction

2- Contracts with an expiration date and new contracts.

3- Contracts that cannot be fulfilled as the parties had agreed.

4- New enrollment periods.

5- Other regulatory issues.

 

 

1. Introduction

 

A- The World Health Organization has characterized covid-19 as a pandemic, altering Soccer activity worldwide.

 

B- FIFA maintains that it is the Member Federations that must indicate in due course, when the activity must be resumed in each of the countries, according to what the pertinent national health authorities indicate, taking into account the guiding principle of preservation Of the health.

 

C- FIFA defined that the alteration caused by the virus is a case of FORCE MAJEURE.

 

D- Article 27 of the regulation of the player transfer statute (RETJ) indicates that in cases of force majeure, it is the FIFA Council that makes the decisions definitively.

 

2- Contracts with next expiration date and new contracts

 

As the start of the new season will be affected, FIFA anticipates that the following four types of conflicts may arise:

 

(i) Contracts that expire on the original end date of the season.

 

(ii) Assignment contracts and contracts related to these, which expire on the original end date of the season.

 

(iii) Transfer agreements whose start coincides with the original start date of the season.

 

(iv) Contracts whose start date coincides with the original start date of the season.

 

FIFA indicates that the determining factors when deciding the contractual situation are those regulated in article 18 of the RETJ (end of contracts at the end of the season) plus the need to guarantee the integrity of the competition.

 

Therefore, FIFA proposes:

 

(I) If a contract expires on the original end date of the season, such expiration MUST BE EXTENDED until the new season end date.

 

(ii) If a contract begins on the original start date of the next season, that start MUST BE POSTPONED until the new start date of the next season.

 

(iii) If there are overlapping seasons or enrollment periods, and unless all parties agree otherwise, priority will be given to the previous club to complete the season.

 

Regarding international transfer agreements:

 

(iv) All remuneration MUST be deferred until the new start date of the next season or first enrollment period.

 

3- Contracts that cannot be fulfilled as the parties had anticipated

 

In these cases, recourse must be had to national employment legislation or to collective agreements (if any), when the contract cannot be fulfilled.

 

FIFA recommends the following guiding principles to follow to find fair solutions for clubs and players:

 

(I) Clubs and employees are required to reach collective agreements in each club or league, during the suspension of competition.

These agreements must address: Remuneration, postponement or salary limitation, protection mechanisms, conditions during the extension of the contract, etc.

 

(ii) Unilateral decisions are admitted in the modification of the contract if they are made according to National legislation or collective agreement.

 

(iii) If the clubs and employees do not reach agreements and the national legislation or collective agreement is not applicable, the Dispute Resolution Chamber (CRD) or the Player Status Commission (CEJ) will admit unilateral decisions if they are made under the principle In good faith, they are reasonable and proportionate.

 

When is a decision reasonable?

 

A- If the club tried to reach an agreement with its employee.

B- The economic situation of the club.

C- The proportionality of the contract amendment.

D- The employee's net income after the amendment of the contract.

E- If the amendment was made to the team or specific players.

 

(iv) The contracts between club and player MUST BE SUSPENDED during the stoppage of the activity of Soccer, maintaining the insurance and the management of alternative routes that support the employee in that period.

 

4- Registration period (transfer window)

 

The RETJ (regulation of the player transfer statute) provides that the Member Federations may amend the registration dates in exceptional circumstances such as those we are experiencing.

 

Guiding principles proposed by FIFA

 

(I) All requests for extension of the current season end dates will be approved.

(ii) All applications for the extension of enrollment periods, which have already started as long as they do not exceed the maximum limit of 16 weeks, will be approved.

(iii) All requests to extend the enrollment periods, which have not started, for no more than 16 weeks will be approved.

(iv) Member Federations are allowed to modify the dates of the seasons and / or registration periods.

(v) As an exception, if a contract expired or was terminated as a result of the virus, it can be registered by a Federation, outside the registration period, regardless of the expiration or termination date.

 

5- Other regulatory issues

 

A- Transfer of players to national teams

 

The rules forcing clubs to transfer their players to national teams will NOT apply in the periods of March, April and June.

If the club agrees to transfer it, the player may decline the call without disciplinary action.

 

B- LOANS

 

The effective date of the amendment on international loans that came into effect on July 1 has been postponed without date.

 

C- Enforcement of FIFA bodies.

 

No exceptions are made to the due compliance of the decisions of the FIFA bodies

 

D- Request for extension of deadlines to FIFA bodies

 

A maximum of 15 days may be granted at the request of the interested party, if the cause is linked to the coronavirus.

 
Clarifications from FIFA legal director Emilio Garcia Silvero

"FIFA cannot extend the contracts beyond June 30, but the transfer windows will not be the same and the players will not be able to be registered. The market does not open on July 1, " stressed the Spanish in dialogue with Tiempo de Juego by Cadena Cope.

"If a loan ends on June 30, the player, theoretically, should return to his club, but the registration window would not be open and the card would not be processed , " said García Silvero, who also ventured that there is a chance to that there are several periods for hiring.


"There may be several windows. It will depend on the start and end of each competition. The idea is that the windows end just before the start of each championship and they do not have to coincide," concluded the FIFA manager.

The solutions that Argentine soccer is finding

 

Resolution 219/2020 of the National Ministry of Labor indicates that the sum received by workers will be non-remunerative.

The spirit of this norm is found in article 223 bis of the Labor Contract Law and is the legal basis on which some Argentine soccer clubs rest.

Decree of necessity and urgency 329/2020 prohibits dismissals and suspensions for a period of 60 days from March 31, for reasons of force majeure, lack or reduction of work or dismissals without cause.

In this context, the clubs can agree individually or collectively to pay a percentage of the salary of a non-remunerative nature to compensate for the suspension of the workforce.

In other words, this agreement is based on the normative collective agreement 557/09, the labor contract law (article 223 bis) and the DNU and ministerial resolutions mentioned in the context of force majeure.

These agreements must be duly approved by the Ministry of Labor.

Article 223 bis of the employment contract law preserves the employment contract and therefore the labor source, which is what is sought in these times of crisis.

Law 24,700 of October 1996, incorporated into Law 20,744 article 223 bis that provides that non-remunerative benefits shall be considered as cash allowances that are delivered in compensation for suspensions of the labor benefit and that are based on the causes of lack or decrease in work, not attributable to the employer, or force majeure duly verified, agreed individually or collectively or approved by the enforcement authority, in accordance with current legal regulations, and when, by virtue of such grounds, the worker does not perform the labor provision at his expense. It will only pay the contributions established in the Laws Nros. 23,660 and 23,661.

Likewise, the National Government confirmed that the clubs can access the productive recovery program (REPRO), which allows them to reduce and postpone employer contributions, the payment by the State of up to the equivalent of a minimum wage, vital and mobile , etc.

The first club to enter this program was Ferrocarril Oeste, which is active in the second category. Several clubs are expected to continue on the same path.

The same strategy does not exist among the so-called big teams: Boca Juniors has proposed to respect the contracts although there is talk of postponing some payments.

Racing Club has already reached a pay cut agreement. Independiente de Avellanada and San Lorenzo are looking for the same path.

Anyway, the Argentine Football Association (AFA) is looking for a specific agreement with the Government that includes Decree 1212, which is one of the main problems of local football.

 

The situation in the Premier League

 

Premier League President Richard Masters addressed the government explaining that they could have losses of more than 1 billion Pounds and that many clubs would be forced to close their doors.

The President of the English Football Federation, Greg Clarke, expressed himself in the same sense, indicating that if this situation lasts much longer, some clubs will disappear.

This is why the league joined the British government's measures to pay a part of the players' salaries.

Likewise, they requested a reduction in the footballer's wages by 30%, a proposal that was not accepted by the Footballers' Association.

Tottenham and Newcstle United joined the government's measures to pay their administrative employees.

 

Reaches of the ERTES in the soccer of Spain

 

The temporary employment regulation file (ERTE) is a figure that clubs such as Barcelona, Atlético Madrid, Español, Álabes, and most of the clubs in the different categories of Spanish football are already using.

This figure is a tool to make visible the difficulties that a company has, in this case due to force majeure as a result of the pandemic.

The regulations allow reducing working hours and wages and suspension of contracts.

Clubs have been using this instrument during this crisis as they can bring back the reduction of wages, tax burdens, suspension of contracts, etc. to March 14.

A large number of second B and third clubs are inclined to suspend the contract of the players and administrative staff.

In the first division they are inclined towards the reduction of working hours and therefore of wages.

This difference has to do with the fact that the clubs of the first have the technical capacity to telework, something that the teams of the other categories cannot do, so they resort directly to the suspension of contracts.

It is important to clarify that in the case of soccer players they have the same unemployment limits in terms of pay as any worker, that is, they will charge around 1,000 euros, depending on the specific case.

In the case of the Barcelona club, an ERTE has been presented, endorsed by the players, where the club will pay 30% of the salary during the state of emergency.

The player will not have the power to terminate his contract by invoking the suspension of the contract or the salary reduction. Nor can you request the money lost during the crisis, as long as the club presents the papers in a timely manner and gets the government endorsement.

According to the collective agreement of the footballer in Spain, we understand that if the contract indicates that its completion is on June 30, that date must be respected. The case would be different, if the contract establishes that it will last until the end of the season, since it must continue until the championship expires.

On the other hand, the Royal Spanish Football Federation (RFEF) has just allocated 4 million euros to alleviate the crisis of clubs and players.

The Spanish Footballers Association (AFE) has already published a document with a series of recommendations once the quarantine is lifted: carrying out a preseason before the start of the competition, mandatory testing of COViD-19, minimizing contact with the public, etc.

 

The Colombia case

 

In Colombia, some clubs have resorted to number 1 of article 51 of the Labor Code invoking force majeure, which prevents the provision of services by workers.

This is the case of the Jaguares and Once Caldas clubs, among others, they suspended all the players until the crisis was overcome.

They only take charge of social security and tax charges.

In particular, Once Caldas offers a sum of money as a loan to its players, who must return it once the situation is normalized.

The union organization (ACOLFUTPRO) understands that these measures are illegal and they resort to the Ministry of Labor to report them.

Other clubs have proposed continuation of the contract with salary reductions, dividing players from those who earn more to those who earn less.

This is the chaos of America de Cali, although they have not yet obtained the endorsement of the players and the guild.

 

The Bundesliga

 

The characteristic note of Germany is that the teams of the first and second divisions are already training in small groups and staggered shifts, fulfilling a series of sanitary requirements.

The clubs will have the necessary material to take the COVID-19 test.

The league's executive director, Christian Seifert, plans that football activity return for the first days of May, with games without an audience.

For this he is already talking to the authorities, to generate a development plan in which they estimate around 240 people will be needed for each party.

The need to return to the stadiums is raised from an economic point of view, since it is understood that smaller clubs, such as those in the second division, are in certain danger of declaring bankruptcy.

Regarding the management of wages during the crisis, most of the clubs have chosen to make a salary cut agreed with the players: the largest teams with a cut of around 30% and the smallest of 10%.

© 2019 Association of Experts on soccer rights

Mail: derechosdelfutbol@gmail.com

Whatsapp: +54 9221 618-7294

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