By Wil van Megen
In 2015 the French government introduced a new law that excluded professional athletes from the application of the regular national law on fixed term employment contracts.
The government stated that they had consulted all stakeholders (employers and employees) before taking this step. However at no point did France’s biggest group of professional athletes agree on the text voted on by parliament. Ninety-five percent of professional footballers in France are members of the national players union UNFP.
The UNFP, together with other athlete unions, lodged a complaint before the European Commission because the new legislation contravenes European Union law. The Commission recently confirmed it had received the complaint and would investigate further.
In 1999 the EU established a directive on fixed term employment contracts.
Every EU country was obliged to apply legislation on fixed term agreements as part of the directive.
First of all this legislation needed to state when successive fixed term agreements would turn into indefinite time agreements. Secondly the directive introduced conditions for EU member countries to deviate from the directive.
In football the contracts between clubs and players are fixed term agreements. This means that the directive applies to these contracts.
The effect of the directive for football is that after a contract extension and a designated period of time the contract becomes indefinite. In most EU countries the designated period is two or three years.
In order to avoid this outcome it is possible for stakeholders to reach an agreement that establishes a deviation from the directive and national law. Stakeholders can prevent contracts becoming indefinite-time contracts.
German football case
In some countries stakeholders in football concluded a collective bargaining agreement in order to regulate this issue.
In a number of other countries the directive was completely ignored. This was the case in Germany where the case between Heinz Müller and his club Mainz illustrated that there was no provision in German football regulating this matter.
The court of first instance ruled that after the extension of his contract Müller had an indefinite time contract. This was an accurate and precise application of the directive and the national law.
The case caused huge commotion in Germany. The vice-president of the German football federation (DFB) expressed that he feared to have players aged over 60 in the Bundesliga if the law was applied.
The court of second instance was apparently impressed by the counter arguments and ruled that the law and directive did not apply to football. However, the arguments applied by the court are far from convincing. As the case is appealed again we will have to await the final outcome.
First of all it is good to observe that the French government concluded that it needs legislation or a collective bargaining agreement to exempt professional athletes from the general national legislation.
This appears to be a correct starting point.
This is an indication that the German appeal court decision in the Müller-Mainz case is at least debatable and probably incorrect.
Secondly, the directive only allows deviation for reasons of abuse. It is obvious that the new French legislation is not aimed at preventing abuse. In no way is it demonstrated that there has been any abuse.
In clause 5 of the directive it is stated that stakeholders have an important say in the decision-making process. In fact they are able to construe deviations themselves without government involvement. This is logical as it cannot be the case that a government sets aside legislation it is compelled to apply under EU law.
It seems obvious that the new French legislation is not in accordance with EU law. Moreover the fact that the French government deemed it necessary to create new legislation places the court decision in the Müller-Mainz case in a different light.
Wil van Megen is FIFPro’s legal director.
- Published: 16 November 2016