The problems facing footballers & coaches when signing with Asian clubs (and how FIFA is trying to help)

Imagine that you’ve just accepted a contract to continue your chosen profession in a foreign country with the promise of lucrative pay, generous living allowance, and attractive performance bonuses. You did your homework; your online research suggests that the employer ticks all the right boxes. You spoke to a few acquaintances who may have worked there previously or lived in that country. You even had a recruiter reach out and recommend you for the position. You pack up your home or put your belongings in storage – or, if your family is staying behind, you kiss them goodbye – and head off on your new adventure. 

Imagine your surprise when, within a few days of arriving, you get told one or a combination of the following:

• sorry, we can’t get you a visa, your contract is cancelled;

• sorry, we can’t register you at the local association, your contract is cancelled;

• sorry, you failed the medical (even though it just consisted of running on a treadmill for 20 minutes), your contract is cancelled;

• sorry, we found a better employee, we have a cooling off period or right to terminate you unilaterally without cause, your contract is cancelled; or

• sorry, what you signed is an invitation letter (or pre-contract) and not an employment contract, we have decided that we don’t want to employ you.

Alternatively, imagine that at the end of your first month, your salary does not arrive. Despite repeated assurances that this was a technology or workflow error, your salary doesn’t arrive again at the end of your second month. You are suddenly facing major financial crisis. Of all the scenarios, this unfortunately is the most common.

The above hypotheticals are all scenarios that the author has encountered in Asian club football in the past twelve (12) months.   However, Asian football is far from broken.  In the last decade and a half, the epicentre of football finance has arguably shifted to the East, as major investment in European football clubs has been undertaken by Asian investors.[1] 

Accordingly, this article examines the regulations and jurisprudence developed by football’s international governing bodies to try to combat such problems and provide employment-related protections to players and coaches. While the author’s broad focus is on Asia (where her practice is based), the principles discussed apply equally elsewhere. Specifically, the article looks at:

• The role of FIFA’s Regulations on the Status and Transfer of Players (RSTP)
• Principles derived from FIFA and the Court of Arbitration for Sport (CAS) jurisprudence relating to:
  • Medical examinations
  • Visa and work permits
  • Other administrative formalities
  • Potestative clauses (i.e. clauses that are completely within the power of one party)
  • Double contract scenario
  • Pre-contracts vs “essentialia negotii” (essential terms)
  • De-registration of a player
  • Non-payment of salaries
  • The prohibition on reducing salary or terminating a contract due to injury or poor performance
• Club licensing regulations on the non-payment of contractual sums
• Comment