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The Applicability Of Article 12bis Of The FIFA Regulation On The Status And Transfer Of Players In NIgeria – Amobi Ezeaku, Esq.

An American politician Grover Norquist once asserted that ‘government should enforce rule of law. It should enforce contracts; it should protect people bodily from being attacked by criminals. And when the government does those things, it is facilitating liberty. When it goes beyond those things, it becomes destructive to both human happiness and human liberty’. Grover’s position on the need for government to enforce contracts is one that over the years had been hammered upon by authors, sports analysts, pundits, sports lawyers and indeed all stake holders in the juicy corridors of sports in Nigeria.

The intention of this brief piece is to take a long hard look at the malady football clubs in Nigeria are often faced with particularly as it regards compliance with their financial obligations towards players and other clubs as per the terms stipulated in the contracts signed with their professional players and in the transfer agreements while also placing side by side the current addition to the Regulation on the Status and Transfer of Players – Article 12bis.

Article 12bis –overdue payables- of the Regulation on the Status and Transfer of Players provides in paragraph(1) that “clubs are required to comply with their financial obligations towards players and other clubs as per the terms stipulated in the contracts signed with their professional players and in the transfer agreements”. The wordings of this paragraph in a nutshell are a reiteration of the principles of contractual sanctity/sanctity of contract also referred to as the pacta sunt servanda doctrine. We do not need to dwell on this much longer since we had earlier posited in our previous writings that the contract which creates the very sacred link between a player and the club is very vital in the modern era of football as all eyes go back to that link in cases of breach. This principle of contractual stability is of paramount importance in the world of football. It is at the basis of an efficient transfer system characterized inter alia by the redistribution of wealth from ‘big’ to ‘small’ clubs as well as by secured investments in youth development. If the principle of contractual stability is very well understood by clubs, players and all stake holders in the football world and put into practice, the level of growth both at the amateur and professional level of football in Nigeria will be enviable.
The question begging for an answer is how many clubs in the Nigeria Professional Football League could boldly say they have complied with their financial obligations towards players? Indeed, the norm is now for clubs and some clubs’ chairmen to boast of how untouchable they are and how they would blatantly disregard the provisions of the Rules and Regulations of the Game without the Nigeria Football Federation or the League Management Company cracking down upon them.
Just recently, players of El-Kanemi Warriors Football Club, a football club in the top flight division of the Nigeria League decided to stay away from their Nigeria Professional Football League game at FC Ifeanyi Ubah because of unpaid wages. The League Management Company (LMC) the body responsible for the Nigeria top flight league had earlier before then warned the club, that they must pay outstanding debts to the players before October 27, 2015 or they will have six points deducted. What is even more worrisome is that before the El-Kanemi Warriors FC drama, the Nigeria Football Federation (NFF) Players’ Status/Arbitration Committee had earlier doled out decisions with sanctions sprinkled around them in cases of breach to clubs like Nasarawa United Football Club, Akwa United Football Club, Bayelsa United Football Club, Shooting Star (3SC) Football Club to mention but a few. Some of these Clubs have failed to comply with their financial obligations towards players, coaches as well as other clubs as per the terms stipulated in the contracts signed with their professional players and in the transfer agreement.

Paragraph 2 of Article 12bis of the Regulation on the Status and Transfer of Players provides in clear terms that ‘any Club found to have delayed a due payment for more than 30 days without a prima facie contractual basis may be sanctioned in accordance with paragraph 4 below’.

What the above provision therefore implies is that football players in the Nigeria Professional Football League do not need to wait to be owed till they attain Methuselah’s age rather where there is no prima facie contractual basis for delaying a due payment due to them for over 30 days a trade dispute could be declared and such clubs may be sanctioned in accordance with the laid down Rules. It should be noted that this provision is in conflict with the 60 days stipulations enshrined in the LMC Guidelines and it is our view that on the basis of Article 1 (3) (a) –Scope- of the Regulation on the Status and Transfer of Players which states that ‘the following provisions are binding at national level and must be included without modification in the association’s regulations: articles 2-8, 10, 11, 12bis, 18, 18bis, 18ter, 19 and 19bis’, the provisions of the FIFA Regulations on the Status and Transfer of Players prevail.

To invoke the provisions of the Article under review all that the Player or Club needs to do is to grant a deadline of 10 days in writing. This deadline is to allow the debtor club to comply with its financial obligation(s) as contained in the contracts or transfer agreements.

Article 12bis (3) provides therefore that ‘in order for a club to be considered to have overdue payables in the sense of the present article, the Creditor (Player or Club) must have put the debtor Club in default in writing and have granted a deadline of at least ten days for the Debtor Club to comply with its financial obligation(s)’.

Within the scope of their respective jurisdiction, the Players’ Status Committee, the Dispute Resolution Chamber, the single judge or the DRC judge may impose the following sanctions: a warning; a reprimand; a fine; a ban from registering any new players, either nationally or internationally, for one or two entire and consecutive registration periods.

Since the Nigeria Football Federation confers jurisdiction only on the Players’ Status/Arbitration Committee and because of the absence of a Dispute Resolution Chamber, the single judge or the DRC judge, the burden upon the Players’ Status/Arbitration Committee at this point becomes heavier and the Committee is therefore charged to appreciate the enormous duty it bears towards the survival and promotion of football in Nigeria. The Committee should look at the sanctions provided in the Regulations and impose them accordingly when the need arises without fear or favour.

It should be noted that the sanctions provided for in paragraph 4 of the Regulations may be applied cumulatively so that a Club, for instance, in addition to being warned could also be fined or banned from registering any new players, either nationally or internationally, for one or two entire and consecutive registration periods.

Where a Club is in the habit of repeating the offence of in compliance with their financial obligations, this is considered as an aggravating circumstance and may lead to more severe penalty.

It is interesting to note that paragraph 7 of Article 12bis of the Regulation on the Status and Transfer of Players has also considered the effects which probationary measures could have on defaulter Club(s) and thus provides that ‘the execution of the registration ban in accordance with paragraph 4 d) above may be suspended. By suspending the execution of a registration ban, the deciding body subjects the sanctioned club to a probationary period ranging from six months to two years’.

The 2015 season in the Nigeria Professional Football League is almost over but this new addition to the Regulations on the Status and Transfer of Players could still be meaningfully applied to the various issues be-deviling our league. It is our position that the NFF and the LMC could make the applicability of Article 12bis of the FIFA Regulation on the Status and Transfer of Players a dream come true so that in the subsequent seasons, the success and progress already recorded by the NFF and the LMC could be doubled and when this is done the lost confidence by majority of soccer loving Nigerians would be restored. The Players’ Union should also appreciate the enormous task upon her and corroborate with the NFF and the LMC towards the advancement of the soccer regime in Nigeria.

Amobi Ezeaku, Esq is the Legal Adviser, Nigeria Players’ Union

EDITOR’s NOTE: I found this nice piece of article in my inbox this morning. I do not know the writer in person, nor how it ended  its journey in my inbox. But going through the piece I was educated from the legal angle on this issue. Therefore I decided to post it on the blog under the Category – GUEST BLOG. 

Please, note, however, that the opinions expressed in this post is that of the writer and does not in anyway reflect mine or of the blog.

Thanks

M. Babajide-Alabi

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