The Starting Point of the Protected Period Under Saudi Football Regulations
The Starting Point of The Protected Period in Contracts of Professional Football Players in light of the Provisions of the Saudi Arabian Professionalism Regulations, the Regulations of the Fédération Internationale de Football Association (FIFA) and the Decisions Issued by the Court of Arbitration for Sport (CAS)
In this brief article we will cover (A) the definition of the Protected Period (B) the significance of the Protected Period, and (C) the starting point of the Protected Period.
A – Definition of the Protected Period
Article 1 of the Saudi Arabian Professionalism Regulation on the Status and Transfer of Players defines the protected period as “a period of three entire seasons, or three years, whichever comes first, that starts after the entry into force of the contract, if such contract was signed prior to the 28th birthday of the professional player, and a period of two entire seasons, or two years, whichever comes first, that starts after the entry into force of the contract, if such contract was signed after the 28th birthday of the professional player.”
This definition set out in the Professionalism Regulation is identical to the definition provided by article 13 of the Regulation on the Status and Transfer of Players (RSTP) issued by the Fédération Internationale de Football Association (FIFA):
“The Protected Period corresponds to a period of 3 entire seasons or 3 years, whichever comes first, if such contract was concluded prior to the 28th birthday of the professional, or to a period of 2 entire seasons or 2 years, whichever comes first, following the entry into force of a contract, if such contract was concluded after the 28th birthday of the professional.”
One can observe from the two identical legal texts that the Saudi legislator replicated article 13 of the RSTP issued by FIFA and inserted it within the definitions’ section in article 1 of the Professionalism Regulation. This replication is of paramount importance, for any interpretation that is bestowed upon article 13 of the aforementioned RSTP by the Dispute Resolution Chamber (DRC) and the Court of Arbitration for Sport (CAS) is bound to influence, whether directly or indirectly, the interpretation given to the protected period in the context of a dispute brought before the Professionalism and Player’s Status Committee or the Dispute Resolution Chamber of the Saudi Arabian Football Federation (SAFF); notably with regards to the determination of the starting of the protected period, as will be shown in the third part of this article.
B- The Significance of the Protected Period
Determining the meaning of the protected period is extremely important with respect to (1) the maintenance of the stability of contracts concluded between football clubs and professional players, (2) determining the jurisdiction of the quasi judicial committees (DRC & PSC) in the event of a dispute between a professional player and a club or between two clubs in connection with the services of the player, (3) identifying the penalties and sanctions imposed by the competent judicial bodies in the event of breach of the contractual obligations by the professional players or the clubs, or violations of the Professionalism Regulation and other regulations governing the football sporting profession.
1- The Protected Period and Maintenance of the Stability of Contracts Concluded between Football Clubs and Professional Players
This role played by the protected period is clearly illustrated in one of the decisions issued by the CAS, whereby it interpreted the purpose behind the enactment of article 13 in the RSTP as follows:
“Pursuant to Article 13 of the Regulations on the Status and Transfer of Players (the “RSTP”), the contract between a professional and a club can only be terminated on expiry of the term of the contract or by mutual agreement. The main purpose of this provision is that a club and a player that enter into an agreement should, in principle, respect and honor the contractual obligations during the term of the contract, also known as the principle of “Pacta Sunt Servanda”.
“FIFA, therefore, introduced the concept of Protected Period, which was meant to safeguard the maintenance of contractual stability.”
The Professionalism Regulation embodied this concept in several provisions, including, for instance, the articles in Chapter 16 titled “Maintenance of the Stability of Contracts between Professional Players and Clubs” (Article 43, paragraphs 1, 4 & 5), and indirectly in Article 5, paragraph 1 of the Dispute Resolution Regulation by way of tying the Chamber’s jurisdiction to the maintenance of the contractual stability of the professional contract, which is the role ascribed to the protected period.
2 – The Protected Period and Determining the Competence of Judicial Bodies
The notion of the protected period plays a paramount role in determining the competent judicial body entrusted with the adjudication of disputes arising out of breach of the contracts of professional players and the violations of the Professionalism Regulation provisions by players and clubs.
It is worth noting that the Dispute Resolution Chamber has a compulsory jurisdiction in the event of the occurrence of a contractual breach during the protected period, regardless whether it was committed by the player or the club, as shown by the legal texts hereunder:
Paragraph 1, Article 5 of the Dispute Resolution Chamber Regulation by way of tying the Chamber’s jurisdiction to the stability of all the aspects of the professional contract. We have observed that this particular purpose constituted the rationale behind the stipulation of the protected period in the Professionalism Regulation and the RSTP issued by FIFA.
Paragraphs 4 & 5, Article 43 of the Professionalism Regulation which set forth sporting sanctions in the event of occurrence of a violation during the protected period, noting that the Dispute Resolution Chamber exclusively and solely imposes such sanctions, whereas the competence of the Player’s Status Committee is limited to imposing disciplinary sanctions.
Finally, it has to be noted that the Player’s Status Committee preserves its general and optional competence in imposing disciplinary sanctions, whether occurring during or after the protected period.
3 – The Protected Period, the Imposed Sanctions and the Awarded Compensation
The sanctions imposed by the competent authorities vary according to the occurrence of contractual breaches and non-compliance with legal obligations during or after the protected period. The Dispute Resolution Chamber of FIFA declared in one of its judgments:
“Notwithstanding the above, the difference between the breach during or after the Protected Period, is that sporting sanctions will only be imposed on the party that breached the contract within the Protected Period. Unilateral breach without just cause (or sporting just cause) after the Protected Period will not result in sporting sanctions…. In order to analyze the DRC’s approach in establishing the financial compensation for breach, it is important to be aware that several situations can occur that lead to the obligation to pay compensation. In the context of Article 17 Paragraph 1 of the RSTP, 2016 Edition, we have to distinguish situations whereby the player breaches the contract and whereby the club breaches the contract, with and without just cause, and whereby breaches take place within and after the Protected Period.”
The Professionalism Regulation has acknowledged this distinction (i.e. the distinction between the breach occurring during and after the protected period) in numerous articles, in particular without limitation:
Paragraph 4, Article 43 which stipulates: “In addition to the duty to pay compensation, sporting sanctions shall be imposed upon any player who has been found to violate the termination terms of the contract during the protected period, namely suspension from taking part in official matches for a period of 4 months, and in an aggravated case suspension might be extended for a period of 6 months…. The one-sided breach committed after the protected period with no lawful cause or no legitimate sporting reason doesn’t entail sporting sanctions; however disciplinary procedures may apply outside the protected period for not submitting a notice of termination of the contract during the 15 days following the last official seasonal match (including the national cups) to the club that the player is registered with. Upon renewal of the contract, the protected period begins to run again when the term of the previous contract is extended.”
In this regard, it is finally worth noting that in accordance with paragraph 1, Article 43, the occurrence of breach during the protected period also plays an important role in determining the amount of compensation for breach of contract.
C- The Starting Point of the Protected Period: Is it from the date of signature of the contract or its entry into force?
The protected period is significant in determining the competent authority that looks into the disputes arising out of breach of contracts between the professional players and clubs, and the violations of the provisions of the Regulations on the Status and Transfer of Players, particularly the Professionalism Regulation, in addition to identifying the applicable sanctions as a result of breach of the aforementioned contracts’ terms and the regulations’ provisions. In this regard, determining the starting point of the Protecting Period is key.
This issue resulted in much controversy as a result of the ambiguity of the legal texts that define the Protected Period; Article 1 of the Professionalism Regulation (which derived its definition from article 13 of the RSTP issued by FIFA) stipulates that the Protected Period corresponds to “a period of three entire seasons, or three years, whichever comes first, starting after the entry into effect of the contract that is concluded prior to the 28th birthday of the professional player, and a period of two entire seasons, or two years, whichever comes first, starting after the entry into effect of the contract that is concluded after the 28th birthday of the professional player.”
Which bears the following question: does the term “starts after the entry into effect of the contract” mean that the protected period starts after the signature of the contract or at a later date which the parties designate and agree upon as being the effective date of the contract.
Bearing in mind that the Professionalism Regulation was enacted recently (issued in 2021 M) and the scarcity of decisions issued by the Dispute Resolution Chamber, or the Professionalism & the Players’ Status Committee, or the Court of Arbitration for Sport in the Kingdom of Saudi Arabia in this regard, reference had to be made to decisions rendered in this regard by the FIFA’s DRC and the CAS.
Particularly noteworthy is a decision issued by the CAS with reference No. Arbitration CAS 2009/A/1909, RCD Mallorca SAD & A. v. Federation Internationale de Football Association (FIFA) & UMM Salal SC, award of 25 January 2010
In this decision, the CAS makes the following statement:
“59. With respect to the first point, the Appellants submit that the Second Contract was not breached in the Protected Period: the Second Contract, in fact at the time of the Termination Letter, “had not yet come into force”, since it had effects starting from 1 July 2008. As a result, no suspension can be imposed on the Player. According to the Appellants, in fact, the Protected Period starts only at the moment the relevant contract comes into force-to last then for the period indicated in the Regulations. Thus, a breach occurring before the entry into force of a contract does not occur within the Protected Period.
“60. The Panel does not agree with such interpretation of the concept of Protected Period. The Panel notes that the wording of the definition of Protected Period contained in the Regulations could lend some support to the Appellant’s interpretation to the extent it refers to “a period…following the entry into force of a contract”. The Panel, however, underlines that the definition can also be read as only setting the date the Protection Period expires (i.e., at the end of a period of two or three years or seasons following the entry into force of a contract) and not to imply that a breach committed after the signature of the contract and before its entry into force is not within the Protected Period.
“61. More in general, the Panel understands the interpretation submitted by the Appellants as based on the confusion between the “binding force” of a contract and the “entry into force” of such contract. An employment contract is binding on the parties as of its signature even if an initial deadline is set for its applicability. A breach before that deadline, (e.g., the day before), depriving the other party of the expected performance promised by the party in breach, is not less serious than a breach after (e.g., the day after) the deadline. The rationale underlying the concept of Protected Period, i.e. to reinforce the contractual stability in the first years of contract, applies to both breaches. As a result, the breach of the Second Contract by the Player, to the extent it was committed after the signature of the Second Contract but before its entry into force, occurred in the Protected Period.”
The importance of this decision lies in the following points:
1- The Court qualified the contract of the professional player as an employment contract.
2- The Court went beyond the literal and plain sense of the legal text, and rather interpreted it in a sense that fulfills the need to maintain the contractual stability during the first years of the contracts of professional players.
3- The Court favored the interpretation that says that the protected period starts from the date of signature of the contract, regardless of whether the parties agreed that the contract enters into force after a certain period of time following their signature thereof.
We hope that we have been able to shed some light on some of the important aspects of the concept of Protected Period as embodied in the Saudi football regulations and that our article will assist those entrusted with the interpretation and enforcement of the relevant legal provisions in the event of disputes arising between clubs and players and between clubs themselves.