The law in Nigeria and how it affects the clauses in football contracts – Part 1

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This article analyzes the statement credited to Plateau United Football Club General Manager, stating that all the players and coaching staff have been placed on half-salary following their dismal start to the season.  

We analyze the propriety of this action in the light of emerging employment law trends and the football jurisprudence. This analysis is firmly circumscribed within performance clauses in football.

The law in Nigeria, however, remains that the relationship between a master and his servant or employer and his employee, is a contractual one and it is governed and regulated by the terms and conditions of the contract between them.

Generally, the rights, obligations and liabilities of the parties to such a contract, are to be determined on the basis of the terms and conditions to which they have freely and voluntarily agreed to govern and regulate the relationship between them.

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In addition, the law generally does not permit a Court to alter, by subtraction or addition, or re-write the terms and conditions of a contract entered into by the parties, on the pretext of exercising a judicial discretion that completely ignores the sanctity of their agreement.

It is widely recognized in the United Kingdom that an employment relationship is a special kind of contractual relationship that contains express and implied terms, obligations and duties that may not be present in other types of contracts.  

In Braganza v BP Shipping and Another, a case which concerned an employer’s refusal to pay a death in service benefit, the United Kingdom Supreme Court acknowledged that an employment contract is “of a different character from an ordinary commercial contract”, and “had specialties that do not normally exist in commercial contracts.”

Those specialties include implied terms such as the mutual term of trust and confidence, an employee’s duty of fidelity or loyalty, and in some situations, an implied obligation on the employer to provide work.  

Employment contracts also have “significant social and economic implication…affect a high proportion of the adult population and have a profound impact on their personal lives and on their relationships with others”.  It is also widely accepted that an employment relationship is characterized by power disparities that almost always favour the employer.

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In Braganza the UK Supreme Court referred to the “significant imbalance of power between the contracting parties as there often will be in an employment contract.”  

In Eastham v Newcastle United Football Club, the High Court referred to the inequality of bargaining power in a professional football player’s relationship with a club. It highlighted the role of the Court as being able to ensure that restrictive covenants agreed in circumstances of unequal bargaining power are reasonable. The court held in part as follows:  

The authorities make clear the distinction between contracts entered into by vendors and purchasers of a business, where the parties are of equal strength, and contracts between master and servant when often they are not; and it is relevant that in the football industry players commonly enter into their first contract either while they are under 21 or shortly afterwards, and that wherever they may subsequently go, within the Football League, there is only one form of contract they can sign. The Court must be careful to see that contracts made in these circumstances are justifiable in the interests of both parties.

This imbalance of power in sports employment contracts has been recognized both by the regulatory bodies and the courts and has made it more heavily regulated than other commercial contracts. National Legislation of many countries now provides for minimum employment rights to assist in redressing the power imbalance in the relationship.

League bodies now stipulate not only the standard clauses to be found in employment contracts with players but also require that copies of these contracts be kept with the league bodies.

Collective bargaining agreements have now become veritable instruments used by the Players’ Union to keep the employers in check with a view to achieving parity between the bargaining power of labour and management.

The right to strike and take other industrial action to bring economic pressure to bear on an employer in support of demands for better working conditions is now recognized as a fundamental right of workers in some international legal instruments and the national law in some countries.  

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