The curious case of Enyimba Football Club and Chibuike Nwaiwu (Part I)
Nigerian champions Enyimba Football Club of Nigeria recently went on social media to declare that one of their players had gone AWOL (away without leave). However, in a sudden twist in the tale, the missing Enyimba star whose disappearance had baffled the club and fans has been found in war-ravaged Israel. This discovery has triggered a wave of reactions across the football community and highlights the challenges Nigerian club sides face in their attempts to keep their playing staff most of whom are obsessed with looking for greener pastures abroad.
It was, therefore, no surprise at all that the player was spotted in Israel ostensibly on the invitation of another club. This case represents the latest in a series of incidents involving NPFL clubs where their players abscond from their team camps and unilaterally terminate their employment contracts with their clubs in search of better opportunities abroad.
In 2014, a number of Enyimba players failed to report to their pre-season camp in Otta, Ogun State, prompting the then Head Coach, Zachary Baraje to issue an ultimatum to the players involved. In 2019, both Kada City FC and Katsina United FC in a separate albeit related incidents announced that two players in their employ (one each) absconded from the club without permission to attend trials abroad. We examine the regulatory and legal ramifications of this development in the light of prevailing FIFA jurisprudence, the legal permutations and options available to both parties.
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One of the main aims of the provisions on the maintenance of contractual stability is to create a level of sporting and contractual certainty for both players and clubs. On the one hand, clubs should be able to rely on the fact that, unless a premature termination of the contract is mutually agreed with the player, they will be able to count on the player’s services for a certain period, and at least until the end of the season.
This is also reflected in article 18 paragraph 2 of the Regulations on the Status and Transfer of Players (RSTP), which states that the minimum length of a contract between a professional player and a club shall be from its effective date until the end of the season. This stability is key for allowing clubs to make sport-related plans.
If there is a high risk that the composition of a squad will vary significantly during a season, it becomes impossible for a coach to work on developing specific technical, strategic, and tactical programmes. Perhaps the only obvious exception is the mid-season transfer windows where club sides can reshuffle their playing staff by significantly strengthening it with available players and releasing a few players who have become surplus to requirements.
On the other hand, the sporting and contractual certainty this provision creates is also beneficial to the personal development of individual players and their progress in their careers. The pith of the contractual stability principle is that, unless a premature termination of the contract is mutually agreed with the club, they will have secure employment for a certain period, and at least until the end of the season, meaning the player has both sporting and financial security.
The only downside to this principle is that it might make it difficult for them to find a new club during the season, particularly if they are not considered a world-class talent. They would normally only be able to move during an open registration period, and since other clubs are often reluctant to sign a new player unless they are sure how to integrate them into their existing squad, it is less likely that a player will be able to find a new club in the mid-season registration period.
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The consequences of terminating a contract under the FIFA RSTP can be generally summarized as follows:
i. If a player terminates a contract with just cause (article 14 and/or 14bis, in conjunction with article 17): – no sporting sanctions are applicable to the player; – sporting sanctions may be applicable to the club if the contractual breach occurred during the protected period; – compensation will be payable to the player.
ii. If a player terminates a contract without just cause during the protected period (article 17): – sporting sanctions may be applicable to the player; – compensation will be payable to the club.
iii. If a player terminates a contract without just cause after the protected period (article 17): – no sporting sanctions will be applicable to the player; – compensation will be payable to the club.
iv. If a club terminates a contract with just cause (article 14 and/or 14bis in conjunction with article 17): – no sporting sanctions will be applicable to the club; – sporting sanctions may be applicable to the player if the breach of contract was during the protected period; – compensation will be payable to the club.
v. If a club terminates a contract without just cause during the protected period (article 17): – sporting sanctions may be applicable to the club; – compensation will be payable to the player.
vi. If a club terminates a contract without just cause after the protected period (article 17): – no sporting sanctions will be applicable to the club; – compensation will be payable to the player.
vii. If a player terminates a contract with sporting just cause (article 15): – no sporting sanctions are applicable to the player; – no sporting sanctions are applicable to the club; – compensation may be payable to the club.
Contractual compensation clauses
The first element considered by article 17 paragraph 1 of the RSTP is whether any existing contractual clauses establish in advance an amount due from the party at fault in the event of a breach of contract. Parties may include a compensation clause in their contract which establishes in advance the amount to be paid by each party in case of a contractual breach. It is a legal requirement in some countries for such a clause to be included in contracts between professional players and clubs for example in Spain.
On the other hand, (sports related) legislation or collective bargaining agreements in other countries such as France prohibits the inclusion of such clauses in contracts, for example because they are not compatible with statutory employment law in the country concerned. Contractual compensation clauses fall into two distinct categories. There is presently no such domestic regulatory framework in the Nigeria Premier Football League, NPFL. At any rate, the author is not privy to the details of the terms of the employment contract between Enyimba Football Club and the player in question nor any compensation clauses included in the contract.
References
i. FIFA Commentary on the Regulations and Status of Players, 2nd Edition @page 133
ii. ibid
