Onlangs verscheen een artikel van Eva Traag over de nieuwe CAO voor Contractspelers Betaald Voetbal op de website www.lawinsport.com. Het artikel belicht de totstandkoming en achtergrond van cao’s in het algemeen en van de CAO Betaald Voetbal in het bijzonder en zet de voordelen en bijzonderheden uiteen van een cao in de wereld van profvoetbal. LawInSport is een digitaal platform waarop artikelen worden gepubliceerd over juridische kwesties en ontwikkelingen op het gebied van profsport.
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The new CBA for contracted players in professional football
The new CBA for contracted players in professional football Introduction The new Collective bargaining agreement (CBA) for contracted players in professional football has entered into force as from 1 July 2014. The CBA lays down a number of terms and conditions of employment as well as general rules concerning the work situation, such as paid leave during sickness and rules on the hiring out of players.
This article outlines what a CBA is, and details the establishment and the content of the new Dutch CBA for contracted players in professional football and the main Dutch legislation that governs the negotiations and the application of a CBA. The principle benefits of a CBA – in general and in professional football – are then discussed briefly, and to conclude, we touch upon the complicated relationship between the CBA for contracted players in professional football and the FIFA regulations.
What is a CBA?
The unions that represent employees and the organisations that represent employers (also the ‘social partners’) play an important part in the development of terms and conditions of employment which contributes to balanced negotiations between employers and employees at individual level.
A CBA is the result of collective bargaining between the social partners, both at employer and employee level, and can be agreed at industry, sectorial or company level. It usually contains collective terms and conditions of employment, arrangements concerning the settlement of disputes between the parties to the CBA and agreements and rules concerning the relations and contact between the parties to the CBA.
It is often used by the social partners as an instrument to supplement legislation in the field of labour law and to a large degree CBA’s come in place of individual arrangements. For instance, the social partners can make arrangements concerning salary, continued pay during sickness or paid holiday that exceed the legal minimum.
The provisions of a CBA supersede the conflicting provisions of an individual employment agreement when the employer and employee fall under the scope of and are bound by the CBA. This means that when an employer and an employee agree upon terms and conditions in the employment contract that are less favourable (for the employee) than those laid down in the applicable CBA, these are replaced by rule of law by the arrangements made in the CBA.
Establishment of the new Dutch CBA for contracted players in professional football
The parties to the new CBA for contracted players in professional football are the VVCS and ProProf, the unions that represent the players, and FBO, the employers’ organisation that represents the clubs.
The negotiations started in March 2014. On 2 April 2014 the parties reached an agreement, which the clubs and the players accepted on 15 and 17 May 2014 in form of the new CBA. The CBA came into effect from 1 July 2014 and will run until 1 July 2018.
The CBA applies to the employment relationship of (1) clubs that possess legal personality and who are members of the FBO and admitted to the men’s competitions of the division for Dutch association football of the KNVB (Royal Netherlands Football Association) and (2) players with the aforementioned clubs who are registered with the division for Dutch association football of the KNVB. All clubs in Dutch professional football are member to the FBO.
The CBA regulates important terms and conditions of employment for the players. For instance, the CBA guarantees players a 100 % continued pay (under conditions) during sickness and it introduces a collective revalidation insurance with a maximum coverage of € 175.000,– in addition to the arrangements for a collective accident insurance. The CBA also lays down rules on a pension plan for the players, rules on training and additional education (focusing on the lives of players after their career in professional football has ended). The CBA only covers the employment aspect of the relationship between clubs and players, not commercial aspects, such as image rights.
The CBA is a minimum CBA. This means that clubs and players are free to agree upon terms and conditions that are more favourable for the players as long as the minimum standards laid down in the CBA have been met.
In addition to the provisions concerning the terms and conditions of employment, the CBA contains provisions concerning the general work situation of players, such as a prohibition against the practice of ‘match-fixing’, a system for disciplinary measures, rules on the hiring out of players and a transitional regulation for clubs transferring from the Topklasse (highest amateur division) to the First Division (second level professional division) regarding the minimum of sixteen fulltime contracted players.
In the Annex to the CBA, a standard employment contract is included, the content of which the clubs and players must include in the employment agreement.
The Dutch CBA for contracted players in professional football is rather unique as it offers players income protection for when they become injured and unfit for work. Not many countries offer a similar guarantee at a collective level and players generally need to take care of an insurance policy for continued pay in the case of disablement on an individual level. Players depend greatly on their physical condition to perform, but put their condition at risk in the performance of their work. Therefore, arrangements for continued pay (whether on individual or collective level) are crucial for players.
Legislation governing CBA’s in the Netherlands
In the Netherlands, the negotiations and the application of CBA’s are governed by the Collective Agreements Act of 1927 and the Collective Agreements (Declaration of Universally Binding and Non-Binding Status) Act.
The Collective Agreements Act regulates who can take part in CBA negotiations and be a party to a CBA. Possible parties to a CBA are:
– trade unions with the proper legal capacity (association) as representatives of the employees;
– employers’ associations with the proper legal capacity (association) as representatives of the employers;
– individual employers.
Contrary to the employers, the employees cannot participate in CBA negotiations and/or be party to a CBA on their own behalf.
Furthermore, the Collective Agreements Act regulates the applicability (employment contracts, contracts for work and agreements to provide services) and the establishment of CBA’s and the procedural rules concerning CBA’s.
In principle, a CBA only applies to the contracts between employers and employees who fall within the scope of the CBA and are bound by that CBA. If they make arrangements that are contrary to the arrangements laid down in the applicable CBA, the provisions of the CBA come in place of the individual arrangements. In the case of a minimum CBA though, parties can agree upon terms and conditions of employment that are more favourable for the players.
Employees can also be covered by a CBA when they are not members of a union (that is a party to the CBA), because employers who are bound by a CBA must apply the provisions of the CBA to all their employees (bound or not bound).
Furthermore, the provisions of a CBA can (partly) be declared universally applicable by the Minister for Social Affairs and Employment on the basis of the Collective Agreements (Declaration of Universally Binding and Non-Binding Status) Act for a maximum duration of two years at the request of one or more parties to the CBA concerned. These provisions then apply to all employers who fall within the scope of the CBA. This is only possible when the CBA is a industry-wide or sectorial CBA; CBA’s at company level cannot be declared universally applicable. Also, the provisions of the CBA must already apply to a significant part of the employees working in the field affected by the CBA to be eligible for universal applicability.
The new CBA for contracted players in professional football has not (yet) been declared universally applicable, but previous CBA’s for contracted players in professional football have been declared universally applicable in the past.
Lastly, a CBA applies to the employment relationship of employers and employees who are not directly bound by the CBA, but fall within the scope of the CBA, when they agree in the employment contract to apply the CBA. In the Netherlands, this is a common practice.
Benefits of a CBA in Dutch professional football
A CBA offers several benefits for both employees and employers. It creates clarity about (a part of) the terms and conditions of employment and the terms and conditions laid down in a CBA are usually more favourable for employees than the legal minimum. Furthermore, a CBA benefits a calm labour market and some statutory provisions can be contracted out of in a CBA (such as the provisions on the ‘chain rule’).
The possibility to deviate from the ‘chain rule’ (or ‘3×3 rule’) – Dutch legislation on the maximum amount or maximum duration of fixed term employment contracts – is one of the most important advantages of the CBA for contracted players in professional football for the clubs.
In principle, employers and employees can only agree upon three fixed term contracts or a fixed term of maximum three years. After three contracts or three years, a fixed term contract converts by rule of law in a contract of indefinite duration (a ‘permanent’ contract). Only when the contracts are interrupted by one or more interval of more than three months, the chain is broken and the count restarts.
Under the current legislation concerning the chain rule, it is possible to deviate from this rule by laying down an alternative for the statutory chain rule in the applicable CBA. The CBA for contracted players in professional football makes use of this possibility and provides that clubs and players can enter an unlimited amount of fixed term contracts (with a maximum of twelve years).
This practice will change under the new chain rule that is part of a substantial revision of Dutch labour law and that will come into force as from 1 July 2015. Under the new chain rule employers and employees can agree upon a maximum of three fixed term employment agreements or a fixed period of maximum two years. Only when the chain is interrupted by one or more intervals of more than six months, the chain is broken. Deviation by CBA will in principle only be possible in a few situations and under strict conditions:
1. in the case of employment agency contracts; or
2. if the CBA valuably argues that the job positions concerned require temporary employment contracts.
In these situations, the fixed amount and/or duration of the fixed term contracts is extended to a maximum of six contracts and a maximum duration of four years.
Due to transitional regulations, current arrangements in CBA’s concerning the deviation of the chain rule will remain valid for 1,5 years after the new chain rule has come into force on 1 July 2015.
Only in very exceptional cases will it still be possible to make arrangements in a CBA to not apply the chain rule. This will only be possible for certain job positions that have been appointed by the Minister of Social Affairs and Employment. It has to be common practice for these job positions and necessary due to the inherent nature of these positions to work on the basis of fixed term employment contracts. The job position of professional football player is the only example of such a job position mentioned in the context of this exception.
The CBA for contracted players in professional football and the FIFA regulations
The CBA for contracted players in professional football differs from most CBA’s in other working fields than professional sports.
In general, a CBA regulates a substantial part of the terms and conditions of employment at a collective level. However, in the world of professional football the FIFA regulations also regulate a large proportion of the terms and conditions of employment on an international level (in addition to the regulations that the CBA sets on a national level).
The clubs must take both the provisions of the CBA for contracted players in professional football and the FIFA regulations into account. Even though the FIFA regulations are not a source of law and the CBA thus has a higher legal authority, the parties to the CBA do take the FIFA regulations into account in the negotiations to make sure that the CBA is consistent with the FIFA regulations. In practice, the FIFA regulations are the highest authority in the business of professional football and the CBA is an instrument to make arrangements on terms and conditions of employment on national level in accordance with the FIFA regulations and domestic labour law.
The CBA for contracted players in professional football offers clubs and players certainty about their legal position and regulates an important part of the terms and conditions applicable to the employment relationship for the next four years. The CBA introduces a couple of valuable new arrangements, such as a collective revalidation insurance and a transitional regulation for clubs transferring from the Topklasse to the First Division.
With regard to the new chain rule, the job position of professional football player will have to be appointed by the Minister of Social Affairs and Employment to arrange that (on the basis of the CBA for contracted players in professional football) this rule does not apply to the employment relationship between clubs and players after the new chain rule has come into force per 1 July 2015.
In order to achieve this, the parties to the CBA need to request the Minister of Social Affairs and Employment to appoint the job position of professional football player in a ministerial decree stating that the chain rule does not apply to that position if the parties arrange so in the CBA.