“-“And if you ever wanted to leave…” – said the Athletic.
– Never!” answered the player, prisoner of eternal gratitude to the club of his life.
The consequences, in spite of the emotion of the moment, remained to be discovered.”
Like if it were a micro story, we could summarize the news of the contractual renewal of the Navarrese footballer Iker Muniain (December 19, 1992), with the Athletic Club of Bilbao, until June 30, 2024.
This article aims to make a relaxed analysis of the legal aspects of the recent news. It will also expose the consequences of the novel (?) agreement reached between club and player, regarding “eliminating the possibility of early termination of the contract by the payment of a clause” or what is the same, dispensing with the so called and little-known “termination clause“.
First of all, before jumping onto the pitch to warm up, we point out a series of points that are useful to understand what will be exposed:
⚽ Professional sportsmen and women are subject to a special labour relationship and are therefore not directly governed by the current Workers’ Statute Law.
⚽ They do so by Royal Decree 1006/1985 of 26 June 1985 (hereinafter, “RD 1006/85“).
⚽ The so-called “termination clause” is the mechanism by which, in an employment contract between the professional sportsperson and the club or entity for which he or she provides services, they agree to pay a specific amount, which acts as compensation for the club, and which is activated in the event that the player wishes to terminate the contract unilaterally, without there being a justified cause for this decision. The payment of this clause, frees the link with the previous club and validates a future contract with a different entity, provided that it proceeds while the windows of FIFA transfers are open.
⚽ Its legitimacy in Spain can be found in Art. 16 of RD 1006/85 in which it is established:
“1. The extinction of the contract by will of the professional sportsman, without cause attributable to the club, will give to this one right, in its case, to a compensation that, in absence of agreement on the matter, will fix the Labor Jurisdiction in function of the circumstances of sport order, damage that has been caused to the entity, reasons of rupture and other elements that the judge considers estimable. In the event that the athlete, within one year from the date of extinction, contracts their services with another club or sports entity, they shall be liable for the payment of the pecuniary obligations indicated.”
“2. The termination of the contract requested by the professional athlete, based on any of the causes indicated in Article 50 of the Workers Statute, will produce the same effects as the unfair dismissal without readmission.”
⚽ The Spanish football market is the maximum exponent of this practice, which is also of common use in Brazilian football, in Holland and in a market of great potential and presumably of future great relevance, such as the Chinese SuperLiga.
1. Is it (i) legal and (ii) valid the agreement reached between Athletic Club de Bilbao and Iker Muniain valid?
⚽ (i) Yes, it is. Spanish Law is governed by the principle of the autonomy of the will, also known as “the principle of contractual freedom“. It grants the right and power to self-regulate the objectives and interests desired by the parties, as long as they do not exceed the limits established in the Law. Observing the assumption of fact, we understand that the essential elements of the contracts are respected and fulfilled: consent, object and cause, since it is guessed:
– Full freedom to contract.
– Free choice of the type of contract and its specifics.
– Mutual consent on the agreement as externalized through a public act and subsequent declarations.
⚽ There is also no doubt about its (ii) validity. Art. 3 of RD 1006/1985 indicates the form of the contract and its content, which it establishes as indispensable requirements:
a) identification of the parties;
b) the object of the contract;
d) the contract length.
Therefore, even though its agreement provides greater legal certainty, and it is a practice of widespread and customary use of the Spanish football market, we conclude that it is a LEGAL and VALID contract, as there is no provision that declares the use of the termination clause as mandatory.
2. What could happen then, if the relationship changes or breaks up?
The Art. 1278 of the Spanish Civil Code, establishes that “the contracts will be mandatory, whatever the form in which they have been celebrated, whenever in them the essential conditions for their validity concur“.
Although it is assumed that the intention of the contracting parties here is none other than to respect and comply with what has been agreed, it is not madness to think that in a world as volatile as football’s , this could change. In fact, we cannot ignore the current situation:
⚽ The team occupies relegation positions.
⚽ ⚽ The coach, Eduardo Berizzo, has been dispensed with an exciting project that no longer exists.
⚽ ⚽ ⚽ Recently, Mr. Josu Urrutia (current President of the club), has announced the convocation of elections for next December 27, to which, he has confirmed his non-presentation, and to which the wannabes are scarce.
What if anything goes wrong…?
3. Does Iker Munian lose the right to unilaterally terminate the contract?
Not at all. The Law does not contemplate such resignation because it would be considered abusive, taking us back to past times where the player remained in a position close to the servitude to the Club in which performed his services.
The Collective Agreement of Professional Footballers in force does not contain any reference to the unilateral termination of the contract by the player, with no just cause.
Therefore, we understand that although it is possible to renounce the termination clause, the right of extinction of a labor contract is inalienable.
Thus, in the hypothetical case that Iker Muniain opted for it, Article 49 of the E.T., would apply. Observing the peculiarities of this case, in case of reliable communication of the will of the player not to continue being part of the discipline of Athletic Club 15 days before the opening of the market, would be free to negotiate its next destination.
4. Does this leave Athletic Club at a disadvantage?
Yes. At least financially.
Faced with this hypothetical situation, and according to the Law, Athletic Club would be legitimated by virtue of Art. 16.1 RD 1006/1985 to go to the Social Jurisdiction, who, due to the fact that there is not a certain amount fixed by the clause, would decide the compensation to be received.
However, this situation presents a series of disadvantages that are difficult to avoid:
– The always exhausting judicialization of the conflict.
– High media exposure.
– The slowness of Spanish ordinary justice to decide on a matter that requires speed due to the short (in comparison) FIFA transfer periods.
– The threat of an evaluation that does not conform to current market figures, in terms of the remuneration, age and sporting projection of the professional athlete, where specific knowledge of the subject may be one of the qualities that the Social Jurisdiction suffers from.
Regarding this last point we must point out that the Social Jurisdiction in the cases that have been required, tends to act as a counterweight to the, for many people, offensive amounts that move today in the world of football, something that does not favor the Basque entity either.
Examples of this are the case of the expeditious defender Óscar Téllez, former Spanish international, signed in 1997 by the U.D. Alavés having a contract with Pontevedra. Despite having a termination clause valued at 15 million pesetas (former Spanish currency, and 90,000 euros at present), a judge reduced the compensation to only three (18,000 euros) taking into account factors such as the salary he received, the remaining years of his contract and Pontevedra’s ruling in the payment of his salary.
In a similar situation was Miguel Angel Ferrer “Mista”, Valencianist emblem who in his time as canterano of Real Madrid, alleged before a court, that his clause (750 million pesetas, 4.5 million euros today) was disproportionate in relation to his salary (2.5 million pesetas, just 15,000 euros annually). The judge also partially agreed with him and Tenerife, who was ordered to pay compensation of only 200 million pesetas (1.2 million euros). On the other hand, there remains the hope to point out, that perhaps, they were other times…
5. Consequences and… Conclusion ?
We arrive at the added time, and shall we decide the outcome of the encounter.
(i)Business/negligence. (ii) Nobility/trust.
(i) In spite of the obtuse, not very detailed and archaic RD 1006/85 and its legal provisions (issues to be dealt with in next articles), there is no denying its clarity in relation to this article.
In the event of a change in events, Athletic Club could be understood to have committed an imprudence: not establishing a termination clause for one of its best players, and its greatest assets, are arguments that suggest this.
The media aspect does not invite optimism either. It is a dangerous precedent, that other players of the generation and category of Muniain, could come to request, with the risks that have been exposed here. This circumstance in addition, in a special club as it is the Athletic Club, is plausible. It is also worrying from the point of view of the fan, who in that constant need to know that the professionals who defend their colors are not mercenaries, could come to “demand” (we all know of the power and virality of social networks today) of these in future renewals of players who are presumed emblematic or own identity in a club, and thus demonstrate that what unites them, is a true love. It must be observed with special care.
(ii) However, I will not be the person who writes this down. The emotional side and the nobility of the gesture is an important and essential element of the greatness of football. In times when mercantilism with colours and passion for a Club is not new, this is a worthy gesture on both sides that deserves special mention, and if I may, only a club of the characteristics of Athletic could perform.
It is for that reason that to change the winds, the common sense and the honesty that took them to the original agreement, would govern a hypothetical opposite situation. There is no more obvious legal logic than common sense. And Athletic and Munian have proved themselves.
Of this, as of so many other things… Only time will tell.
And as we begin we say goodbye. Speaking of stories.
Wishing that whatever the future holds for the Athletic Club and Muniain…
“And they lived happily ever after… ”
Alejandro P. Cervantes
International Sports Lawyer