Equal Pay for Equal Play: Establishing Equality through
Legal Certainty in Women’s Football
A Best Practice Case Study
1 September 2016
Hassnah Z.S. Elhage
Submitted for the degree of LL.M European & International Labour Law
Under the supervision of: Dr. Beryl ter Haar Second reader: Dr. Martine Prange
Abstract
While women’s football has become increasingly popular, an unquestionable gap in legal rights exists between women footballers and their male counterparts. The discussion regarding the allocation of legal rights and equality in European football is often revenue based as opposed to equal treatment by law. While expected to perform the same duties as the men’s teams, the women are not expected to enjoy the same benefits. A prime example of this concerns the United States Women’s National Team that recently filed a lawsuit against their federation US Soccer, which was the main inspiration for the title of this thesis: Equal Pay for Equal Play. This thesis hypothesizes that equality in football can best be established through legal certainty by introducing a Collective Bargaining Agreement in women’s football, using a best practice mixed model approach. To be able to do this, it is necessary to define equal play in the eyes of European law, whilst simultaneously creating a model of legal certainty that will guarantee equal pay.
The methodology used to support the hypothesis is a classic black letter mixed analysis of the European model of sport and the scope of European Law. This approach is used to establish the hierarchy of sports governance and its relation to law. As the existence of ‘Lex Sportiva’ is in itself debatable, the main sources of this work relied on academic articles and European Legislation. In addition, relevant jurisprudence that has framed the position of the European Commission regarding sport is examined. By virtue of the American system of sport, a case study is done regarding the United States Women’s National Team, that filed a complaint against its employer, U.S. Soccer, with the American Equal Employment Commission, demanding equal pay for equal play. Lastly, an argument is made based on the right to equal treatment regarding a collective bargaining agreement by means of the direct horizontal effect of European Equal Treatment Law in the Netherlands.
Results
With the introduction of the Lisbon Treaty (2009), the European Commission included the protection of both sportsmen and women in its personal scope of law through art. 165 TFEU. The White Paper on Sport (2007) determines that sport is subject to aspects of EU law, including equality between men and women and therefore falls within the scope of the Equal Treatment Directive, known as Directive 2006/54/EC. By not including women in the national and/or sectoral collective bargaining agreements, football associations are determining who may, or more accurately who may not participate in the social security schemes based on gender and not on professional qualifications. If both men and women are to carry the duties and responsibilities of being professional football players, then both should be granted the same access and protection by means of proper playing conditions and benefits, regardless of their gender. In the European sport industry where policy relies on multilevel decision-making through many other channels not involved in the sports industry, social dialogue can be seen as a favorable method of achieving both sport specific as well as European policy. Collective bargaining has always been a popular dialogue tool used in the U.S. as the leagues, and not the clubs contract the players in a horizontal model of sport. The outcome of the USWNT vs. US Soccer will be leading in the advancement of women’s football, globally. The discussion will be switched from one of economic rationality, to a demand for rights, brought on by activist women. As football is still mostly a male dominated sport, globally this lawsuit will have an impact on the governing body that still enjoys a monopolistic rule of power: the FIFA. The fact that the team could file such a lawsuit is in part because of its protection provided by the signed CBA, a model that other women’s teams should follow to ensure proper player protection and welfare. The European football pyramid has led to a lack of legal certainty regarding labour contracts, especially for Dutch women’s football, as the female footballers currently receive amateur remuneration for professional participation.
Conclusion
A mixed model approach is necessary in Dutch women’s football as it equals the playing field for the female footballers, who currently find themselves unprotected and exploited as the weaker party in the European model of sport’s most notorious catch 22: the players are forced to be contracted within the football pyramid, yet the pyramid is damaging to women’s professional football in the Netherlands. The new model will allow for granting female footballers the same rights as men, but it will also secure their bargaining position in claiming these rights. In 2016, Women’s sport is an illustration of breaking the glass ceiling and demanding equal pay, for equal play.
Key words: sports law, equal treatment, women’s football, labour law, social dialogue, collective labour
Table of content
Introduction 4
1. The European Model of Sport 10
2. The Scope of law in European football 11
2.1 The Treaty of the Functioning of the EU 12
2.2 The White Paper on Sport 13
2.3 Equal Treatment in European Football 15
2.4 Relevant Case Law 17
2.5 Social Dialogue in European Football 20
2.6 Validity Collective Bargaining Agreements 25
2.7 The Agreement Regarding the Minimum Requirements for Standard Player 25
Contracts
3. The American Model of Sport
3.1 The American Model of Sport 28
3.2 Title IX: The Legislation behind the evolution of elite women’s sports 30
4 Equal Pay for Equal Play: US Women’s National Team vs. US Soccer 31
4.1 How will the outcome of this lawsuit affect equality in football? 37
5. Collective Bargaining Agreement Women’s Football in the Netherlands
5.1 Equality legislation & Collective Bargaining Agreements in the Netherlands 39 5.2 Best practice framework collective bargaining agreement for Women’s
Football in the Netherlands 41
Conclusion 44
Bibliography 46
Appendix 1 49
List of Abbreviations
FIFA Fédération Internationale de Football Association
UEFA Union des Associations Européennes de Football
CONCACAF Confederation of North, Central American and Caribbean Association Football
EU European Union
EC European Commission
ECJ European Court of Justice
ECA European Club Association
EPFL European Professional Football Leagues
FIFPro Fédération Internationale des Associations de Footballeurs Professionnels
MoU Memorandum of Understanding
PFSC UEFA‘s Professional Football Strategy Committee
PFPCMR European Professional Football Player Contract Minimum Requirements
CBA Collective Bargaining Agreement
Agreement Agreement regarding the minimum requirements for standard player contracts in the professional football sector in the European Union and the rest of the UEFA territory.
CAS Court of Arbitration for Sport
US Soccer United States Soccer Federation
MLS Major League Soccer
NWSL National Womens Soccer League
SUM Soccer United Marketing
KNVB Koninklijke Nederlandse Voetbalbond
FBO Federatie van Betaald Voetbal Organisaties
VVCS Vereniging voor Contractspelers
EDV Eredivisie Vrouwen
“Women’s sport is an expression of the right to equality and the freedom of all women to take control of their bodies and participate in sports publicly, regardless of nationality, age, disability, sexual orientation or religion.” - Declaration by the European Parliament following the report on “Women and Sport” (2003)
Introduction
Sports have long been a favorite pastime for many people, worldwide. Top organizations like the world football governing body, The Fédération Internationale de Football Association (FIFA), can identify as both a sport organization, as well as a financial conglomerate. Professional sport has thus become a global industry on its own. The legislative regulation of the global sports industry however, has for years been the subject of legal debate. The term ‘Sports Law’ is in itself controversial, as different sport governing bodies and their leagues cannot be classified under a specific legislative umbrella. While the European Union as an institution is in essence based on the rule of law, due to the proclaimed specific nature of sport, governing bodies and in extension federations do not automatically have to adhere to national and European legislation. Sporting bodies have long argued for the most generous possible interpretation of the scope of ‘sporting rule’ and have aimed to defend their practices as necessary to run their sport effectively. According to the Study on the Contribution of Sport to Economic Growth and Employment in the EU1, 2.98% of the European economy is derived
from the sports industry, somehow therefore granting it a facade of leniency in the eyes of the law. The power of the sports industry in Europe has increased rapidly in the past
decades, with football leading the way. The European sports framework runs in a pyramid structure2, and can largely be accredited with this increase in power. This scheme has proven to undermine legal certainty and has caused friction in several sectors, including European Football. The power allocated to the world’s most beloved sport has raised many questions in recent years, as claims of fraud and mismanagement have come to light in football’s main governing bodies FIFA and its European sister, the Union of European Football Associations
(UEFA). A movement has surfaced questioning non-legislative bodies that for years seemed above the law. Fact remains however, that while law can break sport,3 sport cannot break the
1 Study on the Contribution of Sport to Economic Growth and Employment in the EU, available
at:http://ec.europa.eu/sport/library/studies/study-contribution-spors-economic-growth-final-rpt.pdf 2 As illustrated in Appendix 1
law. A delicate balance between the two is required to secure both the success of the sports industry, while protecting the rights of those engaged in it. This is especially true for the emancipation of women’s professional sport. While the FIFA has scrambled to implement reform policies to regain credibility and legitimacy, an important part of the reform act included a potential cornerstone to a discussion often avoided, or sidetracked: equal rights in football, or more accurately, women’s rights in the football industry.
The 2016 FIFA Reform Committee report4 presented to the Executive Committee of the organization, included several reforms aimed at the ‘Greater Recognition of the Role and Promotion of women in Football.’ This signaled a new era for both women’s football as well as women in football.
Purpose of this thesis
While women’s football has become increasingly popular, an unquestionable gap in legal rights exists between women footballers and their male counterparts. Though the term women’s football creates the illusion of being a version of the sport, it is better suited to be recognized as a branch within the football industry. Women abide by the same rules, play on the same pitches and meet the same requirements as men to be considered elite football players. Ironically, the discussion regarding the distribution of legal rights in football is often revenue based as opposed to equal treatment by law. As stated by Hepple “labour law is […] the outcome of struggles between different social actors and ideologies, of power relationships.”5 The same is true for women in football, who have for years performed on a
professional level, however placed in an amateur legal setting at the mercy of football governance and revenue focused allocation of rights. Arguably, both federations and clubs have sustained this model of governance, proclaiming women’s football as a social duty, at the grace of the clubs and national federations as opposed to a right. The notion of allowing women to play football is a notion that no longer fits the time. The sport’s growth in popularity and revenue and rapid professionalization has led to this statement vastly becoming irrelevant. This thesis will strive to focus on establishing equality through legal certainty by highlighting the need for a collective bargaining agreement in Dutch women’s
4 Available for access at: http://www.fifa.com/governance/how-fifa-works/the-reform-process.html
5 Hepple, Factors Influencing the Making and Transformation of Labour Law in Europe, in The Idea of Labour
Football.6 Equal rights in football is a global problem. Equal pay is a social issue that has a historical reach far further than the sports industry. Borrowing from Mies Westerveld quoting Hoskyns; “The potential for a stronger implementation of equal pay was embedded in the history of the article […]. It took activist women to realize these possibilities and to switch the debate from one of economic rationality to a demand for rights.”7 Addressing the inequalities in the football industry thus resonates with all that sympathize with equal rights and football. The women’s game rapidly increases in popularity and revenue, a fact not reflected in the remunerations of the female footballers. While expected to perform the same duties as the men’s teams, they are not expected to enjoy the same benefits. A prime example of this concerns the United States Women’s National Team that recently filed a lawsuit against their federation US Soccer, which is the main inspiration for the title of this thesis: Equal Pay for Equal Play. This thesis sets out to start defining equal play in the eyes of European law, whilst simultaneously creating a model of legal certainty that will guarantee equal pay. Furthermore, this thesis will examine whether or not the female footballers should adapt to the European framework currently in place in men’s football or adopt their own framework, benefitting from different approaches taken from the American model of sport. To stay within the scope of the hypothesis, the new model of football governance introduced in Appendix 2 will focus on the legal aspects of this model, in order to establish equality in the world of football, and in the eyes of the law. Finally, this thesis will use this model to attempt to create a solid framework to introduce a collective bargaining agreement as means of legal certainty in Dutch Women’s football by using a best practice approach.
Hypothesis:
The introduction of a Collective Bargaining Agreement will establish equality through legal certainty in Dutch women’s football by using a best practice approach to introduce a new model of football governance.
Sub questions:
- To what extent is European Law applicable in extending equal rights to women in football? - Can European football profit from using best practices derived from the American model of Sport?
6 The Netherlands is used as a model country in this thesis as the country is most accessible to myself and
currently lacks a much needed CBA in women’s football.
7 Westerveld, Mies: “11. Women and social security.” Research Handbook on European Social Security Law
Methodology
This thesis takes a descriptive and advisory approach by using classic black letter methodology to analyze legal texts from primary sources. These sources include EU legislation, sport based jurisprudence, American legislation, regulations of football governing bodies, and academic commentary regarding sport specific issues and law. Furthermore, the European model of sport and the scope of European law are identified to establish the hierarchy of sport governance and its relation to the law. This thesis does not however only focus on the letter of the law, as the sports industry heavily relies on policies adopted by their respective organizing bodies. In this sense, female footballers heavily rely on (national) federations, and in European context on policies adopted by the UEFA and the FIFA. Therefore these policies cannot be omitted and will be held against the letter of the law to distinguish any discrepancies.
The analytic framework used in this thesis builds on the framework defined by Branco Martins in ‘The Introduction of the Social Dialogue in the European Professional Football Sector.8 Branco Martins’ model in turn builds on Parrish’s approach, which is a mix of Kingdon’s Multiple Streams Framework as well as Sabatier’s Advocacy Coalition Framework, placed in a setting of European Football. Furthermore, social dialogue is used as an important tool to adopt collective bargaining agreements. The academic work published by Branco Martins on this topic is unique in its own merit as it is the first to thoroughly research European Social Dialogue in regards to football. His work has contributed
immensely to the protection of players, and has served as a base for many collective bargaining agreements in European football. The rise of social dialogue has also strengthened the position of the world’s player union, FIFPro. This thesis will function within the same analytic framework, but will differ in focus. Very little academic research in the legal field
has been allocated to bridging the gap in legal rights between male and female footballers.9 Branco Martins uses a framework to illustrate the important role social dialogue plays in EU sports policy. While unique, it also incidentally excludes female footballers as they were not labeled by sport governing bodies to be professional footballers and thus not included in any Collective Bargaining Agreements. Today, this has changed, granting the opportunity to include the women in the scope of European Football’s Collective Bargaining agreements. I
8
Branco Martins, R: The Introduction of the Social Dialogue in the European Professional Football Sector, Impact on Football Governance, Legal Certainty and Industrial Relations, Edge Hill University, 2014
will assess the lack of equal treatment by using Kingdon’s multiple streams framework and analyze to what extent pure sporting rules can breach European law and who the actors are that can lead to equal pay for equal play based on elements of Sabatier’s Advocacy Coalition framework.
Kingdon’s multiple streams framework focuses on three parallel and independent processes that ultimately illustrate the policy process.10 These processes include a problem stream, a policy stream and a politics stream. The problem stream and the policy stream cannot function together without action taken in the political arena. In this sense, it is EU case law and legislation that led to the adoption of sport into the Treaty of the Functioning of the EU.11 Action from the political arena will thus also be needed to introduce equality in football. Branco Martins applies both Kingdon’s model as well as Sabatier’s model to introduce Social Dialogue in sport. This thesis will apply it to equal treatment in football and will mostly focus on the problem stream that consists of indicators that showcase the problem, and focusing on events that call attention to the problem.12 In this case, the problem is the lack of legal certainty and lack of legal rights concerning women footballers and women in football. I will also offer suggestions for the policy stream by offering solutions to equal the playing field by means of introducing a collective bargaining agreement in European women’s football illustrated by means of Dutch women’s football. A different approach is taken in regards to the politics stream by using a comparative approach to illustrate the power collective
bargaining agreements have in women’s football, using a case study in a different model of sport. Kingdon’s model notoriously lacks the institutional depth to function solely as a framework in European sport legislation.13 Sabatier’s Advocacy Coalition Framework (ACF) fills this void. This model places emphasis on actors that operate in a policy subsystem. The advocacy coalitions redirect public policy in a direction more favorable with their beliefs.14 A practice football governing bodies have enjoyed for decades. The ACF predicts two precursors to major policy change: changes in beliefs of a dominant coalition or changes in available resources and venues. Summarized, this model suggests that when actors act
collectively, they will achieve a ‘power sharing’ effect. While this can work positively, it can
10 Branco Martins,R: The Introduction of the Social Dialogue in the European Professional Football Sector,
Impact on Football Governance, Legal Certainty and Industrial Relations, Edge Hill University, 2014
11 Ibid 12 Ibid 13 Ibid 14 Ibid
also lead to a breach in legal rights. Like social dialogue,15 equal treatment can be seen in this light and its actors must be identified.
In sectors such as law and policy, it is necessary to create legal certainty in areas where it is lacking. As such, in regards to introducing a collective bargaining agreement by means of social dialogue in women’s football, this thesis will not deviate from existing theoretical and analytical principles. Doing so will obliterate any comparative value as benchmarks must serve as a point of reference to be able to establish equality or the lack thereof.
The analytic framework used in this thesis will showcase the role of EU law in relation to sport and offer a further analysis to establish whether equal treatment is a right that surpasses the specificity of sport. The actors in social dialogue and collective bargaining framework in European football will then be illustrated including an analysis of the inclusion of women in the European Professional Football Player Contract Minimum Requirements. Furthermore, by virtue of the American system of sport, a case study is done regarding the United States Women’s National Team (USWNT), that has filed a complaint against its employer US Soccer with the American Equal Employment Commission, demanding equal pay for equal play. The USWNT operates in a different framework than the European women’s teams, partially due to an advancement of women’s sports through the introduction of the federal civil rights amendment that prohibits sex discrimination in education, known as Title IX. Furthermore, collective bargaining agreements bear heavy influence in American sport, granting the women legal certainty lacking in sport in other countries. The outcome of this case will thus portray the powerful role of collective bargaining agreements in sport.
Lastly, an argument will be made based on the right to equal treatment regarding a collective bargaining agreement by means of the direct horizontal effect of European Law in the Netherlands. The actors in social dialogue and collective bargaining in the Netherlands will be identified and a new collective bargaining framework will be established by using best practice models in sport. Considering the roles of the FIFA and UEFA as the most powerful institutions in the global football industry, the European football pyramid scheme is used as a base. The United States and the Netherlands were chosen as the United States harbors its own mixed system of football governance and boasts the most successful women’s football team
to date. In the Netherlands, women’s football has had a huge surge and is becoming increasingly more popular. By law however, the Dutch women enjoy far less rights than their male counterparts. The framework introduced in this thesis strives to change that and equal the legal playing field to eventually equal the financial playing field.
1. The European Model of Sport
The European Model of Sport stems from a merger of Western and Eastern European sport governance. Sport in Europe has traditionally been organized in a system of national federations, where the top federations link together in European and international federations, forming a pyramid shaped system of governance.16 To level this pyramid, the clubs form the foundation of the pyramid, offering grass roots17 sports. A national association will traditionally organize the clubs in leagues in a country. The top national federations are then linked together in European and international federations. The European federation is finally subjected to one, world governing body of the respective sport. In football, this is the FIFA. A trickle down system of governance is thus in play. As discussed by Weatherhill,18 the pyramid is constructed in such a way that decisions regarding the sport are taken after an internal consultation process, however the dialogue regarding these decisions is only limited to the actors adjacent to the levels of the pyramid. National federations tend to have a
monopolistic position as they exclusively carry a license to organize national championships that will allow clubs to participate on an international level. These national federations also organize the country’s national team and players. Today, federations have morphed into a service facilitating role: they organize major sporting events, with big budgets from funds received from public and private funding in the form of sponsorship and broadcasting19 contracts.
In the European model, it is believed that as long as the pyramid has a broad base, the future of sport will be safe.20 In recent years, the focus on this broad base has left most of the power and influence in the hands of the top levels of the pyramid as the establishment of power is built on a top to bottom approach and not vice versa. The European model of sport also implies a competitive interdependence between the levels of the pyramid considering
16 As illustrated in Appendix 1,p.43
17 FIFA defines grassroots football as “football for everyone, by everyone, everywhere.” 18 Weatherhil,S. Is the Pyramid Compatible with EC Law?
19 While literature often refers to television contracts, a case should be made for modern streaming services that
bring in a great deal of revenue for sport organizations
competitions are organized on different levels of play. This leads to a system of promotion and relegation, with a club qualifying for international participation by winning promotion.21 Opposite of this, a club can also be relegated if it fails to qualify.22 Governing bodies have long cheered for this system, as teams can start at the lowest rung of the ladder in a regional competition and theoretically, based on sporting merit alone, can reach the top and play in European competitions.23 The European Model of Sport stresses this system as it finds that the yearly addition of new competitors allows for a more competitive league.24 Harboring the transparency and fair play regulations of these federations and professional clubs has proven to be a burden in modern football. The European Model of Sport in Football has granted the world governing body of football, the FIFA and its European counterpart the UEFA, a pseudo monopolistic position of power and has made both organizations vulnerable to public skeptic, but powerful as sole rulers.
In recent years however, this traditional European Model of Sport has been adapted, first by legislation brought on by the introduction of Social Dialogue in Sport and secondly by introducing a licensing committee in Football. The discussions around the European Model of Sport have introduced questions regarding the scope of law in European Football.
2. The Scope of Law in European Football
To properly analyze the current social dialogue and collective bargaining framework in European football and its effects on the evolvement of professional women’s football, a brief constitutional background is necessary to understand the legal grounds of sports law governance in Europe. This chapter will first provide the reach of the Functioning of the EU (TFEU) as well as the scope of the rule of law in European Football. Then, the main actors in this framework will be identified and lastly an analysis will be given of the current social dialogue and collective bargaining framework including the personal scope of the Agreement Regarding Minimum Requirements for Standard Player Contracts in the Professional Football Sector in the European Union with regards to female professional footballers.
21 For instance, the winner of the Dutch League automatically qualifies for participation in the Champions
League
22 In Dutch football a promotion and relegation from the Eredivisie to the Jupiler League and vice versa every
year
23 European Commission Report on the European Model of Sport, available at:
http://www.bso.or.at/fileadmin/Inhalte/Dokumente/Internationales/EU_European_Model_Sport.pdf
2.1 The Treaty of the Functioning of the EU
The Treaty of the Functioning of the European Union provides for two legal grounds relevant to establishing legal certainty in [women’s] football namely grounds for equality and sport. Under the principle of conferral,25 the EU can only act within the limits of competences set forth by the Members States in the Treaties in order to attain the intended objectives. This rule of law provides that issues not specifically attributed in the Treaties remain with the Member States, and are therefore arranged on a national level.26 In this context, the scope of sport legislation is limited to art. 165 TFEU:
"The Union shall contribute to the promotion of European sporting issues, while taking account of its specific nature, its structures based on voluntary activity and its social and educational function.
Union action shall be aimed at (...) developing the European dimension in sport, by promoting fairness and openness in sporting competitions and cooperation between bodies responsible for sports, and by protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest sportsmen and sportswomen.
The Union and the Member States shall foster cooperation with third countries and the competent international organizations in the field of education and sport, in particular the Council of Europe". 27
The UEFA has interpreted the implementation of Art. 165 TFEU to mean that the specific nature of sport is deemed to be respected by EU legislation, seeing it as an acknowledgment from the Commission that sport cannot simply be treated as any other business.28 However, art. 165 TFEU is vague in its wording and does not grant sport or its governing bodies
complete exemption and immunity from European Law. The introduction of art.165 TFEU in the Lisbon Treaty did not provide the sport industry with legal certainty. The Commission instead chose an approach where sport was included in the Treaty, but the ‘specificity of sport’ was not defined. Instead of providing legal certainty, the scope of the Treaty and the
25 Art. 5(2) TFEU 26 Art. 5 TFEU 27 Art. 165 TFEU 28Ibid
role of the Commission were now broad and unspecific.29 The newly introduced art.165 TFEU was interpreted by football governing bodies as granting EU Law a supporting role when it comes to regulating sport. The UEFA prefers to see the role of the EU as one that is limited to “coordinating, where necessary, sports-related initiatives undertaken at Member
States level.30 This statement alone is problematic in a heavily monopolized industry. While the European Commission did not take a stand on the specificity of sport, it did specifically include the protection of both sportsmen and women in its personal scope of law. Additionally, while art.165 TFEU brought sport into the scope of the TFEU, it is not seen as leading legislation in sporting matters. The EU has not changed its stance since the introduction of White Paper on Sport (2007), which is primarily used by judicial powers in sporting matters, as well as relevant case law like the Warren-Koch, Mecca-Medina and Bosman rulings. 2.2 The White Paper on Sport31
By introducing the White Paper on Sport in 2007, the EU offered an explanatory view with regards to the regulation of sport in the European Union.32 The White Paper on Sport is divided into three sectors: The Societal Role of Sport, The Economic Dimension of Sport and The Organization of Sport. Apparent from The Societal Role of Sport is that the European
Union once again refused to take a strong stand on issues such as using sport as a tool to promote inclusion, volunteering, integration and equal opportunities. Instead, the Commission preferred to rely on embracing a form of soft law known as the Open Method of Coordination33 when it comes to the aforementioned topics, generally leaving these matters to be resolved on a national or sectoral level.34 This stance further highlights the importance of a working Collective Bargaining Agreement to be introduced on a sectoral level for women’s football. A stance the Commission does take in The Organization of Sport is that while it considers that certain values and traditions of European Sport should be promoted, it does not
deem it realistic to define and specify a single and unified model of sport for Europe as it
29 S. Weatherhill: The White Paper on Sport as an Exercise in ‘Better Regulation, The International Sports Law
Journal, 2008
30UEFA’s Position Paper on Art. 165 of the Lisbon Treaty, available at:
http://www.uefa.org/MultimediaFiles/Download/uefaorg/EuropeanUnion/01/57/91/67/1579167_DOWNLOAD. pdf
31 The White Paper on Sport, available at http://eur-lex.europa.eu/legal-
content/GA/TXT/?uri=CELEX:52007DC0391
32 S. Weatherhill: The White Paper on Sport as an Exercise in ‘Better Regulation’ 33 Ibid
accepts the diversities and complexities in European Sports.35 This offers leniency in approaching collective bargaining agreements in women’s football in a new light. Most notable in the White Paper is the claim that while the ECJ and the Commission take into account the ‘specificity’36 of sport, it does not justify specificity as a general exemption from the application of European Law, referring to the ruling of the ECJ in Mecca-Medina. In Mecca-Medina the notion that EU law is to be seen as irrelevant in matters concerning purely sporting rules was dismissed.37 The Commission therefore re-established itself at the top of legislative hierarchy in matters of sport, defining in which instances the specificity of sport
would not be tolerated.
The specificity of European sport is approached through two prisms in the White Paper: - The specificity of sporting activities and of sporting rules, such as separate competitions for men and women, limitations on the number of participants in competitions, or the need to ensure uncertainty concerning outcomes and to preserve a competitive balance between clubs taking part in the same competitions;38
- The specificity of the sport structure, including notably the autonomy and diversity of sport organizations, a pyramid structure of competitions from grassroots to elite level and organized solidarity mechanisms between the different levels and operators, the organization of sport on a national basis, and the principle of a single federation per sport;39
The White Paper specifies in section 4.1 that sport activity is subject to the application of EU law. This is described in detail in the Staff Working Document and its annexes.40 European Competition law and Internal Market provisions apply to sport in so far as it constitutes an economic activity. Sport is also subject to other important aspects of EU law, such as the prohibition of discrimination on grounds of nationality, provisions regarding citizenship of the Union and equality between men and women in employment.”41
35 White Paper on Sport, p.12
36 Branco Martins,R: The Introduction of the Social Dialogue in the European Professional Football Sector,
Impact on Football Governance, Legal Certainty and Industrial Relations, Edge Hill University, 2014
37 Stephen Weatherhill: the white paper on Sport as an Excercise in Better Regulation 38 European Commission White Paper on Sport, available at: http://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=URISERV%3Al35010
39 Ibid 40 Ibid 41 Ibid
In reference to this thesis, an important aspect often overlooked in the White Paper of Sport is that sport is subjected to provision regarding the equality between men and women in employment and is therefore subject to article 157 TFEU and the Equal Treatment Directive.4243
2.3 Equal Treatment in European Football
With the introduction of the Treaty of Amsterdam in 1999, the EU introduced a Directive on anti-discrimination, better known as the Equal Treatment Directive.44 As previously described, the White Paper on Sport specifically determined that sport is subject to aspects of EU law, including equality between men and women45 and therefore falls within the scope of the Equal Treatment Directive, known as Directive 2006/54/EC. This directive provides specific provisions explicitly prohibiting any forms of discrimination on the grounds of sex with regards to pay, treatment in occupational social security schemes and access to employment, vocational training and promotion and working conditions.46 Article 4 of the Directive provides that: “In particular, where a job classification system is used for determining pay, it shall be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on grounds of sex.”
This provision beckons the question whether or not football uses a job classification system to determine pay. Within the sport specific framework, it can be shallowly argued that a professional football player cannot adhere to a job classification system to determine pay as each player is unique and offers a different skillset and not a checklist. However, job specific classifications can be identified from the level of play within a league: i.e. playing in the highest division possible for males or playing in the highest division for females should be
classified as the same level of job classification when both perform at the highest level of play available, with the same contractual set of duties.47 With regards to equal treatment,
42 Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of
the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast)
43 This Directive will be used at a later stage to determine the extent to which a Collective Labour Agreement in
Women’s Football falls within the scope of European legislation
44Ibid
45 S. Cuendet: The EU Commission’s White Paper on Sport: An Official Coherent, Yet Debated Entrance of the
Commission in the Sports Arena
46 Art. 1 Directive
these duties should be introduced in the sectoral level binding collective bargaining agreement. A definition can then begin to form illustrating equal pay, for equal play.
The Equal Treatment Directive highlights examples of discrimination in Article 9 that are relevant in football:
1. Provisions contrary to the principle of equal treatment shall include those based on sex, either directly or indirectly, for:
a determining the persons who may participate in an occupational social security scheme; By not including women in the national and/or sectoral collective bargaining agreements, football associations could be seen as specifically determining who may, or more accurately who may not participate in the social security schemes based on gender and not on professional qualifications.
b fixing the compulsory or optional nature of participation in an occupational social security scheme;
The nature of participation in the national collective bargaining agreement must therefore be based on level of participation in the sport, as previously mentioned. As participation is also currently based on gender, it needs to be considered in breach of European equality legislation. e) setting different conditions for the granting of benefits or restricting such benefits to
workers of one or other of the sexes;
Currently, the women’s teams in many national football associations are not covered by their association’s collective bargaining agreement while the men are. If both are to carry the duties and responsibilities of being professional football players, then both should be granted the same access and protection by means of proper playing conditions and benefits, again regardless of their gender. While it is apparent there is a lack of equal treatment in the football world, the means to combat it are not as simple as checking off Commission guidelines.
Football governing bodies have long opposed blindly accepting European legislation. I will make the argument that law can break sport, if not applied carefully. Therefore, the case
specific approach from the European Court of Justice is favorable, and its jurisprudence has come to define European Sport legislation.
2.4 Relevant Case Law
The EU has always relied on regulating sports law through case law. Several cases brought before the European Court of Justice impacted sports federations and athletes alike. In DeLiège, non-governmental regulations of the Belgian Judo federation restricted a judoka from competing in an international competition, even though she was self-employed in the eyes of the law.48 Lehtonen brought to light the issue of the restriction of free movement of workers, which is a EU basic fundamental right. It became clear that in this context, the limitations to the freedom of movement of workers was possible, if it was inherent to the nature of the sport and could be classified under the ‘specificity of sport.49 Other cases have provided important definitions in European law and will therefore briefly be discussed in
light of equality and scope of law in sport legislation.
The Châlons en Champagne vs. Administrative Court50
In Châlons, the municipal council decided that the number and magnitude of prizes awarded in an international marathon should differ according to the gender of participants. An action was filed on the grounds that the prize scheme constituted discrimination based on the gender of the participating athletes. In this case it was decided that the decision of the municipal council did not constitute illegal discrimination between male and female athletes. The court found that a male top level marathon runner was considered to achieve a much higher level of athletic performance than the female counterpart. The organization therefore established two separate events, and the municipality was not obliged to categorize the events on the same level, therefore not classifying the events to deserve the same remuneration for equal work by men and women. It must be noted that this case and judgment was made less than 20 years ago, highlighting the emancipatory struggles of women’s sports and women in sport. The argument made by the municipal council of Châlons in a different context reflect the historical misogynic notion that women are not deemed fit to vote, or run for President. It is an outdated political, and not legal argument. The mere notion that a women’s event requires
48 Christelle Deliège V Ligue Francophone de Judo et Disciplines ASBL, Joined cases C-51/96 and C-191/97 49 Whether or not this was an infringement of an European right was left up to the national court to precede over 50 Case before the Châlons en Champagne Administrative Court, France (28 January 1999, cases 98- 711 and
a lesser51 performance than a men’s sporting event has long acted as a barrier in the evolvement of women’s sport. This case stems as an example on how legislation has not always aided the process of equality but for a long time hindered equal treatment. Modern football governance should aim to not be categorized as politically outdated.
Case of Kemether v Pennsylvania Interscholastic Athletic Association Inc.52 In
this United States based case the Pennsylvania Interscholastic Athletic Association Inc. (PIAA) was a non-profit association of schools that controlled interscholastic athletic relations and athletic contests involving member schools. On 13 February 1993, the PIAA adopted a policy on the employment and assignment of officials. Under this policy, the PIAA
was to find and employ officials and guarantee them equal opportunities for advancement, which including promotion and training.53 The EEOC Policy provided that the PIAA should recruit, employ and promote officials to all positions and events regardless of gender, unless gender constituted a prerequisite for that position or event. In November 1990, Noreen Kemether became registered as a PIAA official, joining the Delaware County Chapter of PIAA Basketball Officials (Delco Chapter). The Delco Chapter Evaluation Committee was composed only of men, and distributed a list of male officials qualified to referee boys' varsity matches. There was no equivalent list of officials qualified to referee girls' matches, and only male officials were considered to officiate the boy’s varsity matches. Kemether requested to be appointed to officiate matches between boys' teams, as she was dually qualified to do. Her request was denied. On 30 October 1992, Kemether failed in a claim of sexual discrimination against the PIAA brought before the Equal Opportunities Commission. She then brought an action against the PIAA on the basis of Title VII of the 1964 Civil Rights Act, Title IX of the 1972 Education Amendment and the Pennsylvania Equal Rights Amendment, filing that the PIAA had discriminated against her on grounds of gender by refusing to allow her to officiate interscholastic matches between boys' teams. The Equal Opportunities Commission found that in appointing and evaluating officials, Delco had been acting under the apparent authority of the PIAA. The PIAA, which was liable for the Delco Chapter and its assignors' conduct, had violated Title 42 USC paragraph 200 e-2, under which it was illegal for an employer to refuse to employ or to discriminate against a person with regard to the terms of their employment contract on the grounds of gender. The Court
51 Not different, but inherently less interesting due to female involvement
52 Case of Kemether v Pennsylvania Interscholastic Athletic Association Inc. (United States District Court for
the Eastern District of Pennsylvania, 8 November 1999)
53 COLLECTION OF SPORTS-RELATED CASE-LAW By Estelle de La Rochefoucauld, laywer For the Sport
concluded that Title IX applied to the PIAA as it acted on behalf of member schools and therefore received federal funding. The PIAA's attitude was discriminatory during both the regular season and the postseason period as a result of their own sporting rules. The Court declared that there was discrimination and violation of the law. It ordered the PIAA to adopt appropriate rules. In light of reason events surrounding professional women’s sports, the Title IX amendment was seen as the spark that paved the road for women in the United States to participate in professional sports. It remains relevant today as many of today’s American female elite athletes enjoyed a collegiate athletic career due to Title IX. Title IX consequently granted many female athletes the opportunity to professionalize the level of their sport.
Walrave54
In Walrave and Koch, two Dutch nationals brought an action against the UCI and the Dutch and Spanish cycling federations. This case is significant in sports law as the ECJ began to examine whether Community law is applicable to sport. The ECJ ruled that that the practice of sport is subject to Community law only in matters where it involves an economic activity within the meaning of Article 2 of the Treaty. The ECJ also added that the prohibition of discrimination on the grounds of nationality does not apply to rules of ‘purely sporting interest’. The Court more importantly found that sports governing bodies were also subject to fall under the application of the Treaty provisions when they govern collective employment or services related issues.55
Meca-Medina56
In Meca-Medina, the ECJ heavily restricted sports governing bodies relying on purely sporting rules previously introduced in Walrave. In this case, two swimmers found guilty of doping violations filed a complaint against the anti-doping rules of the FINA, calling on
Article 101 of the Treaty. The ECJ rejected this claim as these sporting rules concerned a “non-economic aspect of that sporting action, which constitutes its very essence.”57 The Court used this opportunity to establish the scope of competition law in sport by providing that “the mere fact that a rule is purely sporting in nature does not have the effect of removing
from the scope of the Treaty the person engaging in the activity governed by that rule or the
54 Walrave and Koch case (Case 36-74)
55 Branco Martins,R: The Introduction of the Social Dialogue in the European Professional Football Sector,
Impact on Football Governance, Legal Certainty and Industrial Relations, Edge Hill University, 2014
56 Meca-Medina, ECJ Case C-519/04 P ECR I-6991 57 Ibid
body which has laid it down.”58 By introducing this provision, the ECJ provided that every sporting activity deemed an economic activity must first be assessed to be compatible with the Treaty and that no specific sporting elements fall outside of the scope of the Treaty.59
Bosman60
The Bosman case involved a dispute between a Belgian professional football player, Jean- Marc Bosman, and his club, the Royal Club Liégeois (RCL). In 1990, Bosman claimed that the Belgian football federation, the UEFA and the FIFA had prevented him from moving to a French club, US Dunkerque, in particular by ordering a transfer fee. This case would ultimately become leading in introducing Social Dialogue in European Football.
The ECJ held that the transfer rules directly affected players' access to the employment market in other Member States and were thus capable of impeding freedom of movement for workers.61 Furthermore, the “3+2” rule restricted professional players that were nationals of other EU Member States and their participation in competitions between different football clubs or sports associations and was therefore forbidden. In Bosman the ECJ stressed the hierarchal power and the scope of European Law in sport. It was also the beginning of conversation that ultimately sparked the introduction of social dialogue in European Football.
2.5 Social Dialogue in European Football
Social dialogue was born out of an attempt at regulating labour issues in the field of sport in Europe. It is therefore beneficial in achieving a Collective Bargaining Agreement. At the European level, social dialogue takes place in two forms, a bipartite or tripartite dialogue. A bi-partite dialogue involves European employers and trade union organizations. Tri-partite dialogue involves public bodies, employer representatives and employee representatives. The European Sectoral Social Dialogue Committee (ESSDC) was introduced in 2008, following the signing of the Rules of Procedure by participating EU Member States. The ESSDC is composed of 54 representatives, representing both sides of the industry equally.62
58 Ibid 59 Ibid
60 Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman, ECJ Case C-415/93. 61 Ibid
62 Colucci M, Geeraert, A: The ‘Social dialogue’ in European professional football, available at:
http://www.playthegame.org/fileadmin/documents/AGGIS_article_- _social_dialogue_in_european_professional_football.pdf
Stakeholders participate in social dialogue to achieve added value for their party and to bring balance to the governance of their sector, or in the context of this thesis, their respective sport.63 In essence, dialogue will only be successful if the stakeholders involved clearly identify the benefits of engaging in dialogue, otherwise on the long run, dialogue will fail.64 In the European sport industry where policy relies on multilevel decision-making through many other channels not involved in the sport industry, social dialogue can be seen as a favorable method of achieving both sport specific and European policy. Thus, a strong mandate to negotiate at the European level is of vital importance for the continuation and
evolvement of equality in European football.
2.5.1 Social Dialogue Actors in European Football UEFA
The Union des Associations Européennes de Football (UEFA) describes itself as the parent body of European football. It is one of six continental confederations65 of The Fédération Internationale de Football Association (FIFA). The UEFA works with and on behalf of Europe’s national football associations and any stakeholders involved in football. The European governing body of football exists to promote and strengthen the position of the sport in the EU. The UEFA represents Europe’s national football associations and while it does not have the power of government, it does have significant influence in the practices of the national federations. The UEFA has its own statutes,66 but in football hierarchy, the organization has to comply with FIFA’s rules and regulations.67 In turn, national member associations have to enforce UEFA’s statutes and regulations if they fall within the scope of their jurisdiction.68 The FIFA and UEFA have both suffered from scandals that have brought their practices into question. As the UEFA cannot act outside of the rules and regulations set by the FIFA, they are seen as one actor in this social dialogue framework.
63 Ibid 64 Ibid
65 The 6 Confederations of the FIFA are: The AFC in Asia, CAF in Africa, the Football Confederation
(CONCACAF) in North and Central America and the Caribbean, CONMEBOL in South America, UEFA in Europe and the OFC in Oceania
66 UEFA Statutes, available at:
http://www.uefa.org/MultimediaFiles/Download/OfficialDocument/uefaorg/WhatUEFAis/02/09/93/25/2099325 _DOWNLOAD.pdf
67 UEFA Statutes Section II, art. 2
68 Branco Martins,R: The Introduction of the Social Dialogue in the European Professional Football Sector,
When top professional clubs and national football leagues questioned the UEFA legitimacy, the governing body sought recognition with European Authorities to establish itself as the sole rulers of football in Europe. The European Commission however, refused to recognize one specific European model of sport and stressed the importance of stakeholder dialogue in European Football. When stakeholders FIFPro and EPFL submitted a joint request to the European Commission to start up a new ESSDC, the UEFA participated to keep control of the governance of European football. UEFA responded to the threats to its legitimacy by creating the Professional Football Strategy Council (PFSC) in 2007, and saving a seat for the
FIFPro, the ECA and the EPFL. 69 The PFSC
The PFSC is a consulting body within the UEFA that was created to establish a platform for social dialogue with stakeholders in the governance of professional football.70 The PFSC merely has an advisory and informative role with regards to the UEFA decision-making body, the Executive Committee.71 While the PFSC is a department within the UEFA, it claims to be seen as a separate actor in the social dialogue framework of European Football. The ESSDC procedures state that every item submitted for discussion must first be agreed to by the PFSC.72 The UEFA has established a strong influence over the ESSDC by introducing the PFSC. UEFA, like big brother FIFA, has been known to have a strong aversion to any interference from the EU citing the Commission’s interest not to be protective enough of the governance of sport. UEFA’s involvement in European social dialogue is generally not for a strong interference of EU legislation.73 The UEFA is not a social partner in European social dialogue, as it is a governing body and not a representative of the interests of clubs or athletes.74 It is however, an active actor to be reckoned with considering it is the rule making body in European Football. Any agreement that the ESSDC therefore concludes can only be done with the approval of the UEFA. The UEFA in its turn has to comply to the rules and regulations mandated by the FIFA. Any bargaining agreement that does not comply to FIFA rules can therefore never be an option within the context of the ESSDC.75 It is inherently impossible in this current purely sporting structure for a professional athlete to oppose any
69 Ibid 70 Ibid
71 UEFA Statutes, Section V, art. 23
72 Branco Martins,R: The Introduction of the Social Dialogue in the European Professional Football Sector,
Impact on Football Governance, Legal Certainty and Industrial Relations, Edge Hill University, 2014
73 Ibid 74 Ibid 75 Ibid
rules or regulations defined by the FIFA/UEFA while actively practicing football. In this sense, if the UEFA were to oppose collective bargaining agreements of equal stature for female football players, the player would have to rely on European legislation or social dialogue to overturn this decision. However, if the FIFA and/or UEFA would support introducing equal collective bargaining agreements for women footballers, it would have an automatic trickle-down effect that does not have to rely on EU legislation, but does comply with it. Legal certainty and equality will then stem from football governance.
FIFPro76
FIFPro is an organization that represents both male and female professional football players, worldwide. The organization currently represents 58 national football associations.77 The European department of FIFPro consists out of 29 member associations. The trade union describes itself as the exclusive collective voice of the world’s professional footballers.78 The organization’s intention is to pursue and defend the rights of all professional football players.79 This organization is especially valuable, as professional football players find themselves at the very bottom of the football pyramid. Due to football’s hierarchical governance network, professional football players, who are at the very bottom of this so- called ‘football pyramid’, are subject to the rules and regulations of the governing bodies when exercising their profession.80 As a result, athletes are left unprotected and the governing bodies seem to be above the law. However, as a result of the Bosman ruling, and the White Paper on Sport, the European Commission re-established itself as highest legislative power, and negotiated with the FIFA and the UEFA to include the FIFPro in their new dialogue scheme to instill the guarantee of fundamental rights in European football. The support of the European Commission in the FIFPro has strengthened its bargaining power as well as its legitimacy. Today, FIFPro is recognized by all the parties in the ESSDC as the only umbrella organization of trade unions for professional association football players.81 FIFPro is also a known ally for female football players and has established a Women’s Football committee to handle modern requirement of female professional football players. This covers, but is not limited to legal matters, health and safety issues and gender equality. The Women’s
76 The Fédération Internationale des Associations de Footballeurs Professionnels 77 https://www.fifpro.org/en/about-fifpro/about-fifpro
78 https://www.fifpro.org/en/news/europe
79 Branco Martins,R: The Introduction of the Social Dialogue in the European Professional Football Sector,
Impact on Football Governance, Legal Certainty and Industrial Relations, Edge Hill University, 2014
80 Ibid 81 Ibid
Committee strives to gain the same rights for female as well as male footballers, and to have these rights respected by all stakeholders in modern football. The union has established a framework allowing players to become direct members82 of a worldwide players organization.83 The partnership of the FIFPro will be invaluable to the establishment of a collective labor agreement in women’s football in the Netherlands.
EPFL
The EPFL84 is the representative of professional football league in Europe and considers itself a social partner in regards to all matters of common interest.85 The organization is therefore indirectly an umbrella for top European football clubs. The EPFL is recognized by the UEFA as the legitimate representative of professional leagues in European Football and has pledged to ensure that the views of the leagues are incorporated in its decision making process.86 In return, the leagues commit amongst others to abstain from organizing any supranational events.87 The EPFL thus works in close proximity with the UEFA. The involvement of the EPFL, and indirectly the European football clubs, on a dialogue level increases the credibility of the ESSDC.88
The ECA89
The ECA is an autonomous and independent organization that directly represents the European football clubs, currently representing the interest of 200 clubs in their role as employers.90 The ECA came into existence after contesting the monopolistic nature of football’s governing bodies.91 The ECA is independent of UEFA and represents members outside of the EU-territory. The ECA does not fulfill the criteria set by the European Commission to be recognized as a social partner. A European social partner should consist of organizations, which are an integral and recognized part of Member States’ social partner structures and in turn are entitled to negotiate agreements.92 The EPA represents clubs
82 players can only become a member of the global union if their own national framework does not allow for
them to join a national union
83 https://www.fifpro.org/en/women-football-committee/about-women-football-committee 84 European Professional Football League
85 Branco Martins,R: The Introduction of the Social Dialogue in the European Professional Football Sector,
Impact on Football Governance, Legal Certainty and Industrial Relations, Edge Hill University, 2014
86 Ibid 87 Ibid 88 Ibid 89 Ibid
90 Art. 2(c) statute ECA 91 Ibid
directly, and not as part of a larger union. It cannot therefore legally negotiate agreements. The UEFA, as governing body, has however granted four ECA-representatives a seat in its Professional Football Strategy Council. The question remains whether clubs are not granted an unfair advantage as employer to the weaker party (the employee) in this framework.
2.6 Validity Collective Bargaining Agreements
Agreements made by the ESSDC can be considered binding collective labor agreements (CBAs) as they are created by the voluntary negotiations between employer’s organizations (EPFL and ECA) and trade unions (FIFPro) in football. The agreement also regulates the terms and conditions of employment in European Football.93 Therefore it fulfills the criteria for collective bargaining agreements given by the ECJ and the ILO.94
2.7 The Agreement Regarding the Minimum Requirements for Standard Player Contracts In 2012, the social partners representing the professional football sector mentioned above, signed the first agreement concerning minimum contract requirements in professional football.95 The agreement sets out to protect players and clubs, safeguarding player welfare and finally contributing to good governance in European football.96 It must be noted, that the personal scope of this agreement does not explicitly exclude professional female football players.97 Article 2.398 defines its personal scope to include “a professional football player who is being employed by a club on the basis of an employment contract.” This does not exclude the fact that the original foundation the agreement was meant to represent did not specifically include female players. Equal treatment would go as far as to automatically include professional female football players. Regardless of intent, the minimum requirements will be analyzed under the assumption that it can be valued in today’s society that female players are entitled to the same safeguarding of player welfare and protection that this
agreement originally set out to achieve. Exclusion based on gender, as established, is in violation of the European Equal Treatment Directive.
93 Branco Martins,R: The Introduction of the Social Dialogue in the European Professional Football Sector,
Impact on Football Governance, Legal Certainty and Industrial Relations, Edge Hill University, 2014
94 Ibid 95 Ibid
96 UEFA website: http://www.uefa.org/stakeholders/europeanunion/news/newsid=1786413.html
97 While Art. 8 of the agreement does refer to football players in the male form, one must keep in mind that the
agreement was not made with a focus on including female players. It does not however explicitly exclude female football players keeping them within the scope of the agreement.
2.7.1 Discrepancies in the Agreement regarding Women’s professional football The agreement establishes several key criteria to the validity of an employment contract in European football.99 These criteria will be set in the light of women professional football players to determine where and if sport specific objectives may require a different approach in the collective bargaining agreement framework.
The agreement begins by defining basic criteria such as the names of the parties, their ability to be legally bound by the employment the contract and the co-signature of a parent or guardian incase the player has not reached 18 years of age.100 The contract concluded between player and club101 has to be registered with the national association and every party
to the contract must receive a copy of the contract.102 The contract will clearly stipulate a start and end date of the employment.103 The first provisions of the Agreement stipulate standard European labor contracts. It becomes more sport specific when the Agreement provides for the right to terminate on the basis of just cause. Both male and female players can only play in so far their bodies allow them to be elite athletes, usually in a considerably limited timeframe in regards to other104 professions. In the case of long or permanent injury, the club can give the player reasonable notice in the case the just cause clause however, needs to be included in the contract and must refer to the FIFA Regulations on the Status and Transfer of Players.105 Negotiations on the termination or extension of the contract will be provided for by national legislation to balance out the power between the parties. It is here that a CBA in women’s football can begin to make the framework more specific and leading in the world of football. While national legislation does offer protection, the clubs can use national legislation like the Dutch ‘Flexwet’ to provide players with a one year contract that can soon be extended up to 6 times in 4 years.106 This has been the trend in women’s football, and is favorable to the clubs, but leaves the female players lacking a great deal of legal certainty,
especially in the absence of a CBA. Every year, female players will question whether they
99 Art. 1 Autonomous contract 100 Art. 3.1 Agreement
101 in the role of employees/employer 102 art. 3.3 Agreement
103 Art. 3.7 Agreement 104 Non sporting 105 Art. 4 Agreement
106 This law will be introduced in Dutch legislation this year: http://nos.nl/artikel/2114187-meer-ruimte-voor-
