Professional Footballers Australia (PFA) is continuing to negotiate the 2010/2011 A-League Player Contract Regulations (PCR) with Football Federation Australia (FFA), with the parties in agreement on all but one point.
To date, agreement has been reached on important matters including the introduction of the Australian marquee player rule and the ability for A-League clubs to contract 3 National Youth League players outside of the salary cap. However, the PFA is strongly resisting attempts by FFA to prohibit clubs and players from including transfer “buy-out” clauses in the special conditions to their contracts. The PFA regards such clauses as a serious breach of the A-League Collective Bargaining Agreement (CBA) and the FIFA Regulations for the Status and Transfer of Players (FIFA RSTP).
Points of Agreement
The key points introduced into the PCR for 2010/2011 are:
• the introduction of the Australian marquee player rule (see related articles below);
• the capacity for each A-League club to contract up to 3 National Youth League players on the A-League minimum wage of $37,129.26 outside of the salary cap. The minimum wage is exclusive of superannuation and any match payments;
• the introduction of a 7 day notice period to give an A-League club the opportunity to contract and retain a National Youth League player who has been approached by another A-League club to sign a professional contract. The player is still free to move if he does not wish to stay with his current club;
• increasing the scope for the use of Guest Players to help coincide Guest Player contracts with the FIFA transfer matching system; and
• tightening the criteria for the use of replacement players.
PFA Chief Executive Brendan Schwab warmly endorsed the comments of FFA Technical Director Han Berger about the changes regarding the National Youth League.
“This change gives clubs the opportunity to hold onto and develop their most talented young players,” Berger said on the official FFA website.
“It is important to see more young players performing in the Hyundai A-League. We believe these changes are very necessary for clubs to have more certainty on the professional progress of their players and gives clubs the opportunity to fast track their development with improved financial stability giving young players more time to train with the first team,” Berger added.
“The PFA is becoming concerned that the competitiveness of the A-League is making it difficult for A-League clubs to develop young players,” Schwab said. “This is especially so given the lengthening season and the stress this has placed on the limited rosters of A-League clubs. The new regulation will, we hope, go some way towards addressing both challenges.”
Point of Disagreement
The PFA, however, has strongly resisted a move by FFA to introduce a rule which would prohibit the long standing and accepted practice of A-League clubs and players from including transfer “buy-out” clauses in the special conditions to their A-League Standard Player Contracts. A “buy-out” clause allows a player to terminate his contract and join an overseas club upon the payment of an agreed transfer fee specified in the contract.
According to PFA Chief Executive Brendan Schwab, the PFA opposes the prohibition of buy-out clauses for 3 reasons:
“(1) We believe the prohibition of buy-out clauses will make it even more difficult for a young player to make a well–planned move to an overseas club. A buy-out clause has the distinct advantage of allowing clubs and players to sign longer term contracts in the A-League knowing that in the event of a transfer, an agreed amount of financial compensation will be paid. In the absence of these clauses, players aiming for an overseas move will be forced to seek moves when out of contract. This will increase the likelihood of a poorly planned move, which can damage the player’s long term career aspirations and, indeed, the international competitiveness of our national teams. We also feel it will become more difficult for the A-League to retain our young players in the international market, and for some clubs within the league with a lesser capacity to pay to do the same.
“(2) The CBA expressly allows clubs and players to include special conditions in their contracts which actually or potentially provide benefits to players. There are also a number of other provisions which we believe prevent the prohibition of buy-out clauses.
“(3) The FIFA RSTP expressly allow and, indeed, encourage these clauses.”
Art 17 par 1 of the FIFA RSTP deals with the consequences where a player or a club terminates a player contract without just cause. It reads:
“In all cases, the party in breach shall pay compensation. Subject to the provisions of article 20 and Annex 4 in relation to training compensation, and unless provided for in the contract, compensation for the breach shall be calculated with due consideration for the law of the country concerned, the specificity of sport, and any other objective criteria.”
Art 17 par 2 expressly provides that where a professional is required to pay compensation, “his new club shall be jointly and severally liable for its payment…”
The official FIFA commentary on the FIFA RSTP (FIFA Commentary) sets out in some detail the rights of clubs and players to set out in their contract the amount of compensation to be payable in the event of a unilateral breach of the contract. The FIFA Commentary makes it clear that such clauses are not only permitted by the FIFA RSTP, they are welcomed as a matter of policy. At page 47, the FIFA Commentary states:
“3. The parties may, however, stipulate in the contract the amount that the player shall pay to the club as compensation in order to unilaterally terminate the contract (a so-called buyout clause). The advantage of this clause is that the parties mutually agree on the amount at the very beginning and fix this in the contract. By paying this amount to the club, the player is entitled to unilaterally terminate the employment contract. With this buyout clause, the parties agree to give the player the opportunity to cancel the contract at any moment and without a valid reason, i.e. also during the protected period, and as such, no sporting sanctions may be imposed on the player as a result of the premature termination.
4. Whenever a player has to pay compensation to his former club, the new club, i.e. the first club for which the player registers after the contractual breach, shall be jointly and severally liable for its payment.”
“We are awaiting official confirmation from FFA as to whether it will proceed with the prohibition of buy-out clauses despite our position,” Schwab said. “We trust FFA will, in the end, agree with our approach which is in the best interests of clubs, players and the game.”
