How the Covid-19 Outbreak has Affected the Law of Football: FIFA’s Guiding Principles

April 2020 Ece Özsü

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Introduction

The Covid-19 outbreak, which has been announced as being a pandemic by the World Health Organization, has overwhelmed all activities around the globe. Football is one of the areas majorly affected by the Covid-19 outbreak. As the virus has spread, most of the football leagues have taken appropriate measures, have suspended competitions, and have ceased football activities.

On 17 March 2020, the FIFA Presidency released to the media a statement (“Statement”) concerning the outbreak, which has paralyzed football activities all over the world.[1] In the Statement, it is obligatory to find appropriate and fair solutions that can only be reached through unity, solidarity, and a shared sense of responsibility, in such crucial moments. It is also states that considering, firstly, health and, subsequently, sporting solidarity are the most important values for the football world, the FIFA has been in constant discussions with all of the football stakeholders from around the world, and the Bureau of the FIFA Council (“Bureau”) has been invited to a conference call to see how these matters can be progressed, collectively.

On 18 March 2020, a working group (“Working Group”) was created by the Bureau in response to the Covid-19 outbreak in order to examine the needs of amendments or temporary dispensations through the Regulations on the Status and Transfer of Players (“RSTP”), and/or any adjustments that may need to be considered to the transfer windows.

As the highest governing body of football, the FIFA provided a guideline named “COVID-19 Football Regulatory Issues,” (“Guideline”) that included principles and recommendations in response to the Covid-19 outbreak, on 7 April 2020. With its circular numbered 1714 dated 7 April 2020 (“Circular”),[2] the Guideline, which entered into force immediately, was provided to all FIFA member associations and its stakeholders.

COVID-19 Outbreak as a Force Majeure

In the Introduction of the Guideline, it is stated that concerning the disruption caused by the Covid-19 outbreak, the FIFA has received numerous enquiries and requests mostly related to the RSTP. By emphasizing the FIFA’s responsibility and authorization to provide guidance under such circumstances, it is stated that the Bureau recognizes disruption arising from the Covid-19 as a case of force majeure.

Force majeure is not prescribed in the RSTP; however, Article 27 of the RSTP refers to it. It is stated that cases of force majeure are decided by the Bureau, whose decisions are final. Hence, as laid down in the Guideline, the COVID-19 situation is, per se, a case of force majeure.

FIFA’s Guiding Principles

The Working Group, following its establishment, held two meetings through videoconference and analyzed various matters. As a result, three core issues, which result from the Covid-19 outbreak, are found relevant to be addressed in the Guideline, aside from other regulatory issues: (i) expiring agreements and new agreements, (ii) agreements that cannot be performed as the parties originally anticipated as a result of the COVID-19; and (iii) Registration Periods.

It must be underlined that the principles regarding the agreements (points i and ii) of the Guideline are recognized as non-binding, interpretative guidelines to the RSTP.

Expiring Agreements and New Agreements

The first issue dealt with in the Guideline as a consequence of the Covid-19 outbreak is what will apply to expiring agreements (i.e. those agreements terminating at the end of the current season) and the new agreements (i.e. those agreements that are already signed and due to commence at the start of the next season).

The period between the first and last official matches played in a national league championship is defined as a season under the RSTP.[3] All employment agreements and transfer agreements commence at the beginning a season, while they expire at the end of a season. The entire transfer system of the FIFA is constructed according to the seasons.

The Covid-19 outbreak has caused the postponement and/or suspension of the football league championships for the time being. However, nearly all the member associations of the FIFA (“MAs”) desire to complete the competitions. In such case, these competitions will most likely be played after the original end date of this season of 2019/2020, which will also affect the commencement date of the following season. In this context, the terms of the employment agreements gain importance.

The FIFA primarily emphasizes that this matter shall ultimately be handled by national laws, as all of the employment agreements are governed by national laws, as well as the contractual autonomy of the parties.

On the other hand, the FIFA suggests the following, and is consistent with Article 18(2) of the RSTP:

For agreements expiring at the end of this season, the expiry shall be extended until the new end date of the season.
For the new agreements starting at the beginning of next season, the commencement shall be delayed until the new start date of the new season.
If the football seasons and/or registration periods overlap, the priority shall be given to the former club to complete the season with its squad, unless all parties agree otherwise. The commencement date of the new agreements shall be delayed until the new start date of the next season.
Finally, any payment that contractually falls due prior to the new commencement date of an international transfer agreement (transfer or loan) should be delayed until the new start date of the next season, or its first registration period.

All of the above-mentioned suggestions shall apply to all transfer and loan agreements by analogy.

Agreements That Cannot Be Performed as The Parties Originally Anticipated

The pandemic has caused the non-performance of the obligations arising from the football contracts as the parties had intended. Due to the suspension/postponement of the competitions, the players and coaches cannot continue their football activities; meanwhile, the clubs are not able to provide their work. For the same reason, there is a serious decrease in the revenues of the clubs. In such circumstance, both of the parties are not expected, nor are they able, to perform their contractual obligations, which raises the matter of validity of the agreements.

Within this regard, the FIFA again refers to the national laws (or collective bargaining agreements (“CBA”) where in force) in order to answer the immediate question of validity of the contracts that can no longer be performed. On the other hand, the importance to avoid different treatment or resolutions received by football stakeholders from national courts, tribunals, or any judicial bodies in similar circumstances, is emphasized.

In order to find reconciled solutions in an economic and fair manner, and to avoid any litigation while protecting contractual stability, the following is proposed by the FIFA:

Clubs and employees (players and coaches) are strongly encouraged to work together to find appropriate solutions and agreements for the suspension periods of competitions due to the COVID-19 outbreak;
Unilateral decisions that amend the agreements shall not be recognized unless they are made in accordance with national laws, or are permissible within CBA structures, or another collective agreement mechanism;
If the clubs and employees cannot reach an agreement, and national law does not address the situation, or collective agreements with a players’ union are not an option, or not applicable, unilateral decisions that amend the terms and conditions of agreements will only be recognized by the FIFA’s Dispute Resolution Chamber (“DRC”) or the Players’ Status Committee (“PSC”) where they were made in good faith, are reasonable and proportionate.

When evaluating whether a decision is reasonable, the DRC or the PSC may consider, without limitation: whether the club had attempted to reach a mutual agreement with its employee(s); the economic situation of the club; the proportionality of any contract amendment; the net income of the employee after the contract amendment; and whether the decision applied to the entire squad or only specific employees; and

Alternatively, all employment agreements should be suspended during any suspension of competitions, but proper insurance coverage must be maintained, and adequate alternative income support arrangements must be found for employees during this suspension period.

Registration Periods

In the Guideline, the FIFA safeguards solid solutions concerning the registration periods. Article 6(1) of the RSTP clearly provides that the players may only be registered during one of the two official transfer windows, which are fixed by the related associations. According to the RSTP, the start and end date of the transfer windows are entered into the Transfer Matching System (“TMS”) at least 12 months before they come into force. However, under exceptional circumstances, associations may amend or modify their registration period dates until they commence.

In this regard, the FIFA recognizes Covid-19 as an exceptional circumstance, and proposes the following:

All of the requests for extensions and amendments to the current season shall be approved;
All of the requests for extensions, amendments and postponements to the registration periods shall be approved, provided that their duration complies with the maximum limit established in the RSTP;
National associations shall be able to amend season dates and/or registration periods, through the TMS, or by otherwise notifying the FIFA;
As an exception to Article 6 (1) of the RSTP, a professional whose contract has expired, or has been terminated as a result of the COVID-19, has the right to be registered by an association outside of a registration period, regardless of the date of expiry or termination.

The FIFA also notes that it will monitor and asses the matter of transfer windows, since the related decisions will ultimately depend on the sporting calendar of the different national competitions.

Other Regulatory Matters

In addition to the core matters mentioned, above, the FIFA has also communicated the following principles on other regulatory issues:

The rules that oblige clubs to release players to association teams will not apply in March, April, and June of 2020;
The enforcement date of the amendments made to the RSTP (which were supposed to enter into force originally on 1 June 2020) and provided to the member associations through the circular dated 13.02.2020 and numbered 1709,[4] is postponed;
No exceptions will be granted to comply with the decisions of the DRC, PSC and the Disciplinary Committee, despite the potential financial difficulties;
In the procedures before the DRC and PSC, the maximum deadline is extended to 15 days at the prior request of the related party, due to the very exceptional circumstance of the Covid-19 outbreak;
Concerning the contract offers provided under Article 6 (3) of Annex 4 of the RSTP, where club representatives are unable to use postal services due to administrative measures adopted by the respective government, it will be sufficient for the former club to make the offer by email, provided that the former club obtains confirmation from the player, via any credible means, that he has received a copy of the offer; and
The deadline to publish data related to the registered intermediaries will be extended to 30 June 2020.

Conclusion

The Guideline deals with the immediate and the most important issues caused by the Covid-19 outbreak as known at that time. In the Guideline, it is also stated that this document is the first version, and it may be updated during course of the pandemic according to the consultations conducted between the FIFA and its stakeholders. This may be appropriate since it has been evaluated that the Guideline also raises some follow-up questions.[5]

The Guideline specifically includes that the Covid-19 is recognized as a case of force majeure; however, it does not refer to the consequences of such recognition. In this regard, it is reasonable that the FIFA gives priority to the terms of the contracts and national laws; however, it may contradict the idea of avoidance of different treatments and resolutions decided and received by the football’s actors due to the differences between the legal systems of the countries and/or territories.

Furthermore, if a national law contradicts, or simply does not comply with the FIFA’s rules and the Guideline, what would happen to the priority granted to the national laws and contractual autonomies? The DRC and PSC are not expected to apply national laws since it contradicts with the FIFA’s aim to establish a set of rules that is obeyed by all stakeholders.[6]

In conclusion, the principles set out regarding the urgent and important matters that are named as core matters by the FIFA, appear to be appropriate and fair solutions. However, considering the difficulty to reach uniformity and agreement at the international level, the need to update and improve stands.

[1] Please see the full Statement: https://www.fifa.com/who-we-are/news/statement-from-the-fifa-president.

[2] Please see the Circular and the Guideline: https://resources.fifa.com/image/upload/1714-covid-19-football-regulatory-issues.pdf?cloudid=x9q8h6zvyq8xjtfzmpy9.

[3] Paragraph 9 of the section titled “Definitions” of the RSTP.

[4] Please see circular numbered 1709 and the amendments made to the RSTP: https://resources.fifa.com/image/upload/circular-no-1709-amendments-to-the-regulations-on-the-status-and-transfer-of-pla.pdf?cloudid=ywr4rcralhyoqtfrqyai.

[5] Please see the detailed evaluation of the Guidance: Frans de Weger, Arne Al; “COVID-19: A Legal Perspective on FIFA’s Guiding Principles for National Football Associations,” (Date accessed: 21.04.2020 ).

[6] Ibid.

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