EXAMINING THE NIGERIAN PROFESSIONAL FOOTBALLER’S RIGHTS AS AN EMPLOYEE- Ibidoyin AinaTheSportsWig Admin
The entertainment value of sports has led to significant commercial gains for sports clubs, leagues and even broadcast networks. Notwithstanding the multi-million-dollar industry birthed through the toil and skill of Nigerian athletes, they are far from sufficiently commercially rewarded for their labours at the intersection of sports and entertainment. Take for instance, the most popular sport in Nigeria by far – football. Due to issues related to inadequate regulation and enforcement, many footballers are disadvantaged when disputes arise that could involve the enforcement of awards issued in their favour by the Nigerian Football Federation Arbitration Committee. This dichotomy between the employment conditions of sporting men and women vis-à-vis their counterparts in other fields, has the unfortunate effect of eroding the economic viability of a career in one of the most lucrative industries in the world today; sports. An understanding of the failings of current regulation, and some recommendations to remedy these failings, could potentially unlock the economic security needed to secure the place of sportsmen and women as employees, afforded all the protections available to their peers in other industries.
Nigerian law has now developed to a point where the various participants in the club football value chain; particularly the players, now enjoy some of the status of employees. This was not always the case, as the peculiarities regarding the employment status of sporting men and women, had always created certain novelties that threatened their right to earn the status of employees. An important case decided by the English Court of Appeal in Walker v Crystal Palace Football Club Ltd put an end to the argument that the skills possessed by individual sportsmen took them beyond the control of clubs who paid them; such that they could be called employees. The former notion was that an employer is not in direct control of the skills of a football player i.e. able to prescribe dribbles and other displays of skill on the pitch, etc. In other words, a footballer cannot be told what to do and how to do it, unlike employees in other fields of industry who are in a much more direct relationship of control by their employers. This position has since developed through Walker’s case such that modern employment law now acknowledges the element of employer control needed to create employee status, in players, club managers and other actors across the football value chain.
Another earlier case that enforced the status of players as employees was Union Royale Belge des Societes de Football Association (ASBL) v Bosman where the English Court of Justice held against the UEFA transfer rules saying a player can only transfer abroad if the new club (or the player himself) is able and prepared to pay the transfer fee demanded. This case expounded the status of a player as an employee of the football club and thus, should be accorded employee rights as any other employee in any industry. This decision has not only revolutionized the labour jurisprudence in sports but positively impacted on the regulations on the status and transfer of players as it is in the Nigerian Professional Football League Rules that player contracts shall not be less than three years thereby enforcing stability of contracts.
The parties to an employment contract are typically a club and the player. However, owing to the intricacies and complexities of the contracts and the fact that some of the players may not fully understand the terms in the contracts(level of illiteracy among professional athletes), it is usually advised that they engage agents or lawyers who conduct the negotiation of contract terms on the player’s behalf. The engagement of the services of these agents or lawyers gives that player a competitive edge as the player can now negotiate terms peculiar to his contract such as salaries, performance bonuses, sponsorship deals and image rights . Contract terms may also be derived from collective agreements entered into between a sport’s governing body and players’ trade unions e.g. Professional Footballers’ Association and the Professional Cricketers’ Association which usually ensures that the rights of the players are protected in the contract. The writer is unaware of any professional players’ union in the Nigeria Professional Football League and the extent of influence such trade unions wield in this regard.
The Dispute Resolution Provisions under the NPFL Rules can be found in Section D of the Rules. Given the myriad of labour-related issues ranging from non-payment of salaries and sundry packages between players and their teams, it is little wonder then that the Rules stipulate that all labour-related disputes with a club over unfulfilled contract agreement or conditions of service shall in the first instance be submitted to the Arbitration & Dispute resolution Committee. By Article 4 of Section D of the Rules, the decisions of the Committee are final and binding on all parties concerned. Section E of the Rules provides for Appeals, Adoption & Enforcement. Thus, a party dis-satisfied with the verdict of the NFF Disciplinary Committee reserves the right to appeal to the NFF Appeals Committee; provided that where an appeal or election for hearing pursuant to a notice for hearing have been found to be frivolous, such party may be liable to such additional sanction as deemed fit in the circumstances. Every Appeal must indicate clearly and fully the grounds on which it is based and must be lodged in writing with the General Secretary of the NFF within 48 hours of receipt of the Disciplinary Committee.
The NPFL Rules, interestingly, contain supplemental provisions incorporating salient provisions of the Labour Act as well as the FIFA regulations on the Transfer and status of players. The NPFL being the main football league is assumed to have a certain level of authority and the power to enforce its rules however, it has been observed that most of the NPFL clubs do not comply with the decisions handed down by the arbitral committee thereby leaving the successful party in a quandary. Majority of these cases are employment related cases that deal with overdue payables. After a decision is given in favour of a player, the player is disadvantaged because these clubs intentionally do not comply with the decision of the committee leaving the player’s financially handicapped. Also, it is sad to say that the NPFL has not replicated the serious sanctions provided under the RSTP. Although there are a number of provisions in the NPFL Rules that empowers the NPFL to levy sanctions against erring clubs, the seeming oversight in providing a remedy for enforcement of the decision in favour of the player, remains a mystery. Awards dating back to 2010 have been found to have been either abandoned or altogether overlooked by the successful party owing to the enforcement dilemma under the NPFL Rules. They have now both been criticized for lacking the needed ‘teeth’ of enforcement.
A lot has been said about FIFA’s enforced arbitration process rooted in the dispute resolution provisions of the NPFL Rules. Proponents of this position argue that an aggrieved player or party under the NPFL rules cannot take employment related disputes to the regular courts. This argument is not only self-serving and disingenuous, it is also completely unfounded. Under Nigerian law, it is only the courts that can enforce arbitral awards. Accordingly, where an award has been rendered in favour of a party on an issue involving employment related disputes, that party is expected to approach the National Industrial Court to enforce the award. Therefore, the current state of helplessness of players and clubs in the NPFL over enforcement of awards issued by the NFF Arbitration Committee is not only unnecessary but a misunderstanding of the dispute resolution provisions of the NPFL Rules.
It is pertinent at this juncture to examine albeit briefly, the provisions of Article 22 (b) of the RSTP.
“Without prejudice to the right of any player or club to seek redress before a civil court for employment-related disputes, FIFA is competent to hear:
b) employment-related disputes between a club and a player of an international dimension, unless an independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs has been established at national level within the framework of the association and/or a collective bargaining agreement;
It is conceded that the relevant provisions of the Regulations reproduced above, apply to transfers of an international dimension, the philosophy underpinning the determination of employment related disputes applies with equal force to employment related disputes of a domestic nature. This conjecture is evident from the silence of the NPFL Rules on the role of the courts in determining such disputes. If the intention of the drafters of the Rules was to exclude the courts completely, that intention would have been expressly stated in the provisions. As stated, Article 22(b) contemplates two scenarios, namely; an employment related dispute between a club and a local player and an employment related dispute between a club and a foreign player. In both scenarios, the inalienable rights of access to court by the players are robustly acknowledged.
As stated in Art 22(b) of the FIFA RSTP, football federations are expected to set up Dispute Resolution Chambers (DRC) to handle employment-related disputes between a non-Nigerian player and a Nigerian Football Club at National Level. In context, where William Silva of Brazil or Koffi Boakye of Ghana both playing in FC Ifeanyi Ubah, a Nigerian Club playing in the NPFL have any employment related dispute with their club, Art 22(b) of the RSTP will apply for them. This provision appears to sanction the approach by the player to a court in the first instance. The provision however recognizes that where an ad hoc arbitral tribunal guarantees its independence and fair trial to the foreign national, such proceedings can be commenced therein.
Such claim against any club must be filed within two (2) years of the cause of action, to avoid it becoming statute barred. After the player has obtained judgment against the Nigerian club, the DRC gives the club an ultimatum (usually 45 days) within which the club must pay the judgment sum (money) even if a recent decision of the National Industrial Court seems to suggest that Statute of Limitation is no longer applicable to employment contracts.
Following the introduction of the 2018 RSTP which became effective from June 2018, the Dispute Resolution Chamber has the power to include sanctions in its decisions without the need to refer the case to the Disciplinary Committee on the grounds of non-compliance by a club which can include a ban from registering any new players, either nationally or internationally.
It is however submitted that the foregoing does not detract from the successful party’s right to approach the National Industrial Court to enforce the award. Even though the Arbitration and Conciliation Act only recognizes the High Court, State or Federal as the only courts which can enforce an arbitral award, Section 254 (C) of the 1999 Constitution which vests original and exclusive jurisdiction on the National Industrial Court in respect of employment matters suggests that it is only the National Industrial Court that can hear such application.
Where an Employment-related dispute arises between a Nigerian Player and a Nigerian Football Club, such dispute cannot be taken to the Dispute Resolution Chamber. It is rather expected that the matter be handled by the NFF Arbitration Committee. In practice, the NFF Arbitration Committee is the Nigerian equivalent of the Dispute Resolution Chamber since they undertake the same functions.
Upon such request made by the player, the NFF Arbitration Committee would give a decision usually called an arbitral Award and order the defaulting club to pay the player, or face sanctions similar to the ones meted out by the FIFA Disciplinary Committee.
Successful parties are urged to take advantage of the powers of the National Industrial Court in not only enforcing the awards of the NFF Arbitration Committee but in initiating proceedings in the first instance where the Committee fails and/or refuses to sit to determine genuine employment related complaints made to it.
3. See Section D, Art 1 of the NPFL Rules.
4. Section D, Art 3 of the NPFL Framework Rules 2015/2016.
5. See Article 2, Section E of the LMC Rules.
6. Article 5 of Section D of the LMC Rules, 2014
7. Vanguard Newpapers, May 19, 2016.
8. Walker v Crystal Palace Football Club Ltd  1 K.B. 87.
9. Union Royale Belge des Societes de Football Association (ASBL) v Bosman (C-415/93)  All E.R. (EC) 97.