Player contracts: Colombian football: the need for a new legal
framework
In October 2013, Colombia’s government withdrew a Bill designed to protect the employment rights of Colombia’s
footballers. Joe Bonilla Gálvez, a Senior Associate with Muñoz Tamayo & Asociados, explains its shortfalls,
including why Colombia’s footballers were not in favour of it.
Twenty-two field players sit, for a few seconds, around the centre circle before the whistle blows and another match in the
Colombian professional football league begins. This scene was repeated time and time again in various stadiums around
Colombia throughout 2013. The reason: this was a symbolic protest against the so-called ‘Football Law’ Bill, introduced to
Congress by the Employment Minister, Rafael Pardo, with the intention of regulating and formalising the working relationships
between professional footballers and the clubs that employ them. This protest, of course, is a bit of a contradiction, given that
the idea behind the Bill was to regulate this working relationship that has no specific legislation in our country.
It is important to mention that this Bill first appeared as the result of a conflict that began in 2005, when professional footballers
were close to marching out on strike, outraged at the lack of protection offered to them by Colombian legislation. The Bill was
introduced by the Ministry of Employment and sponsored by the Colombian football federation (FCF), the Major Division of
Colombian Football (Dimayor) and the professional football clubs. After years of legal uncertainty and the absence of specific
regulation for those practicing professional football as an employment activity and livelihood, it seemed that things were about
to change. Ironically, the professional footballers themselves - the direct beneficiaries of the Bill - made up its main opposition.
And indeed, it was their opposition that eventually forced the Ministry of Employment to withdraw the Bill in October 2013.
In the world of Colombian sports, it has long been customary to sign contracts with professional sports players without the
regulation required under their special worker status. This practice has resulted in the infringement of some of the
fundamental principles set out in Colombia’s Constitution.
A footballer’s period of professional activity is relatively short compared to other professions, and this causes problems when it
comes to meeting the necessary economic requirements to earn the right to a pension. To make things worse, some
professional clubs fail to comply with obligations in connection with social security payments, in that they pay contributions
based on artificially low salaries and/or do not pay the required amount. The responsibility and consequences for this
negligence fall, however, on the professional player, whose level of education often puts him at a disadvantage against his
club, which employs specialists in this area. The situation is made more critical still by the fact that professional sports players
are not adequately incorporated into Colombia’s general pension system.
The ‘Football Law’ initiative was not the first attempt at regulating the employment status of professional footballers in
Colombia. In 2005, I had the honour of co-authoring Bill No. 221, introduced to Congress by the nation’s current Vice
President, Germán Vargas Lleras, which set out to establish the minimum parameters for the signing of contracts between
sports clubs and professional footballers. The 2005 Bill, however, was ultimately unsuccessful, due to a lack of support from
the entities responsible for administrating this sport in our country, and from those representing the interests of professional
footballers.
The 2013 Bill appeared to have the noblest of intentions. It aimed to put an end to the precarious and unregulated manner in
which professional footballers were contracted, treated and remunerated. It set out to create harmony between the major
governing principles established by FIFA, and Colombia’s Constitution and legal system. It strived to impose upon Colombian
football the best-practice regulations in employment developed in other jurisdictions. It proposed that all employment contracts
be fixed-term, and touched upon issues such as working hours, temporary and permanent contract termination, causes for
termination and the corresponding compensation, and contracting minors.
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And yet, professional footballers virulently rejected the Bill. They believed that it impinged upon their basic employee rights as
Colombians, and that it threatened to damage their professional activity. Why, then, did they take such strong opposition to
this Bill, ultimately bringing about its failure?
First and foremost, Article 9 of the Bill established that maximum daily working hours would not include time spent travelling
for a match or taking part in pre-match seclusion. Pre-match seclusion, which can last for days or even weeks, is customary in
Colombia and requires that teams stay in separate accommodation to focus and prepare mentally and physically before a
match. Under Colombian labour law, the maximum legal working time is eight hours per day and 48 hours per week, with
allowance for up to two additional hours to be worked per day. It is common for professional footballers to have to travel large
distances for matches. When it comes to a country as vast as Colombia, these trips can be very lengthy - for example, a car
journey from the nation’s capital, Bogotá, to one of its major coastal cities, Cartagena, takes anywhere from 15 to 20 hours. It
is therefore understandable that to deny recognition of these hours spent travelling for a match or participating in pre-match
seclusion is to put professional footballers at a clear disadvantage relative to other professionals, and indeed to go against the
working hour limits established by the International Labour Organization.
This failure to recognise the maximum legal workday was unacceptable to Colombia’s football players; all the more so when
contrasting Article 9 of the Bill with Colombia’s occupational risk regulations, especially regarding work-related accidents and
occupational illnesses. What would happen to a player if he slipped in the lobby of the hotel where his team was staying for
pre-match seclusion and suffered an injury? Would it be considered an occupational accident or a common accident? Was
the player providing a service to his employer at that moment? Was he not taking part in pre-match seclusion at his club’s
request? Who should take responsibility? The club? The Occupational Hazard Administration if it’s deemed a work-related
accident, or perhaps the Health Promotion Agency if it’s deemed a common accident? A myriad of these questions arose,
and the Bill’s authors were unable to provide a clear and convincing answer to any of them.
Working hours may have been one of the main points of contention to cause outrage amongst professional footballers, but
their number one concern and principal reason for opposing the Bill stemmed from section ‘b’ of Article 14 of the same. This
section pertained to the unilateral termination of the employment contract, on the part of the player, without just cause. It
proposed that in such an event, the player would have to pay the club an indemnification equal in value to the salaries he
would have earned during the remainder of the period of employment stipulated in the contract. It was added that if, within
one year from the date of this unilateral termination, the player signed a contract with another club, his new club would be
jointly and severally liable for the payment of this indemnification. In other words, the player would only be free from paying this
indemnification once a one-year period had elapsed.
Thus, Article 14 of the Bill clearly limited the professional footballer’s right to resign from his employment, by imposing an
obligation to pay an indemnification to his club in the event of terminating his employment contract without just cause. This
would unarguably undermine the basic rights bestowed upon every employee by Colombia’s law and Constitution.
The intention behind this Article was, of course, to motivate players to fulfil the period of employment established in their
contracts. Yet, by proposing that the new club - having contracted the player within a year of unilateral termination of his
former contract, be joint and severally liable for paying indemnification - the Bill also motivated clubs to protect their financial
interests in such circumstances, making it likely that any professional footballer leaving his club would face at least a year of
unemployment, along with the serious economic and professional consequences this would bring to a high performance
athlete.
The Bill was, without a shadow of a doubt, penned in good faith and well meaning. However, it overlooked the very
idiosyncratic nature of the profession it set out to regulate and, above all, did not take into account the opinion of those who
practise that profession, in other words those it intended to protect.
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Employment, including football practised as a professional activity, is a right and a social obligation at a constitutional level,
and as such, must receive special protection from the State. A legal framework must be established to set out and protect
respectable and just conditions in favour of those who practise sport as a livelihood.
Despite the efforts put into the ‘Football Law’ Bill, there is still a gap in Colombian legislation and in the Substantive Labour
Code that leaves professional players vulnerable. It is imperative that Colombian legislators, alongside the entities that control
the fate of Colombian football and the players themselves, intervene to create special regulations for the unique employment
relationship that exists between professional footballers and their clubs.
Joe Bonilla Gálvez
Senior Associate
Muñoz Tamayo & Asociados, Bogotá
[email protected]
This article was originally published in World Sports Law Report Volume 12 Issue 9,
September 2014. You can access the original at:
http://e-comlaw.com/world-sports-lawreport/article_template.asp?Contents=Yes&from=wslr&ID=1705
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