- Guideline will be especially relevant to Botswana where non-payment of players are perennial issues
Molefhi Kannemeyer Obenne
With the State of Emergency (SoE) in full swing across the country for the next six months, the game of football – especially its players – has been thrown into an untenable situation in Botswana. Over the years, with or without any pronounced problems, our football has failed to pay players and coaches in accordance with agreed terms.
The country has now come under an SOE without prior consultation with anyone in the beautiful game. However, it has now been confirmed that the Botswana Football Association (BFA) was asked to send wage bills of its affiliates to the Botswana National Sports Commission (BNSC) and has done so in order that players are paid during the SOE. It is all we can do to hope that this commitment will be fulfilled.
At the global level, FIFA has moved swiftly to deal with issues around the COVID-19 pandemic. A working group headed by Vittorio Montagliani, who chairs the FIFA Football Stakeholders Committee, has been put together with representatives of FIFA administration, confederations, MAs, the European Club Association (ECA), FIFPRO and the World Leagues Forum. Mandated by the Bureau of the FIFA Council (the Bureau), Montagliani’s group, will look into issues such as these that plague football in Botswana. Hence on Tuesday the release of a document titled “Football Fights COVID-19: FIFA Guidelines to address legal Consequences of COVID-19” on April 7.
This is also in line with efforts to address issues related to FIFA Regulations on the Status and Transfer of Players (RSTP) by various Football Associations (FAs) or Member Associations (MAs) around the World. Significantly, the Bureau recognised that the disruption to football caused by COVID-19 was a case of force majeure that should be viewed in accordance with Article 27 of RSTP.
The published regulations addressed three areas with regards to Expiring agreements and new agreements, Agreements that cannot be performed as the parties originally anticipated, and Registration periods or transfer windows.
- Expiring Agreements And New Agreements:
The regulations clearly spoke to the expiring agreements, that is, agreements which were terminating at the end of the season, say 31 May 2020. Such contracts should now expire on the last day of the current season as determined by the FA of the respective country. Simply put, if your contract was to expire at the end of May, and if the current season goes beyond that and ends at the end of August, that will be the expiry of your current contract.
Seamlessly, the same goes for new agreements signed, as well as those already signed and were due to commence at the start of the next season. The start of the season will also be determined by the FA, regardless of whether your contract was to start on 1 July. If the season starts on 1 September, that’s when your contract will commence as well.
- . Agreements That Cannot Be Performed As The Parties Originally Anticipated:
Leniency and fairness with a bit of mutual compromise must be made by the parties concerned. This is in consideration of the fact that clubs are not able to make money and so may not be able to meet the agreed financial obligations in accordance with the agreed terms due to COVID-19. Therefore, the employer and the employee must agree how to deal with payment, accommodating the short falls. But FIFA encourages consideration of national labour laws to avoid disputes going to court and to resort instead to Players Status Committees (PSC) and/or National Dispute Resolution Chambers (NDRC). Alternatively, FIFA suggested that all payments due to players may be suspended alongside the suspension of football activities, provided there is insurance to take care of players’ payments during suspension.
- Registration Periods or Transfer Windows:
FIFA has two regular fixed transfer windows which are well documented. The first one, which should not last for more than 16 weeks, is traditionally from June to August/September. The second one, which must last for a maximum of four weeks. But with the uncertainty ushered in by the pandemic, FIFA has offered some sort of flexibility to allow FAs to determine the appropriate periods without exceeding the usual lengths. The dispensation indicated that points 1 and 2 are general provisions and are therefore not binding because the Bereau was only providing a framework to rescue football and its stakeholders. Even so, FIFA has emphasised that it expects players to be paid under any circumstances. Hopefully, we will not see cases of non-payment being reported to the Footballers Union Botswana (FUB). Therefore, clubs will be hoping that the SOE relief which was extended to BFA will help them to avert serious disagreements resulting from struggle with COVID-19