Enforceability of football pre-contracts in Bangladesh : A new horizon?

Many football fans would not hesitate to describe the work of professional footballers as a 'labour of love'. However, in the modern era, the prestige of being associated with the 'beautiful game' like their heroes and the chance to earn millions playing the game they love is a part of football's allure to the younger generation. 

Yet, the life of a professional footballer is one in which a great deal of uncertainty is generated. There are only a few players who have the guarantee that they will be in the starting eleven from week in, week out. 

Even the most gifted players or those with immense experience will, at some stage, experience rejection. Therefore, players must make the right decisions regarding joining the clubs. Entering into pre-contracts is among the major ways by which players have long been enabled to make their own decisions about the trajectories of their careers. 

Generally, footballers in Bangladesh sign a pre-contract with a club to join them and wait for the registration with Bangladesh Football Federation (local football authority) to be completed, which is essentially a simple formality. Signing a pre-contract may be thought to secure a player's place in a club, but this is not always true in many cases. 

To stop the haemorrhaging of club resources and costs on the unwanted dispute, the Football Federation should continue its firmness. An uncompromising approach to compliance has worked in other jurisdictions. Once it is well understood that the BFF will adopt a firm line on enforcement, the expectation is that the contractual duties will be performed in a more disciplined manner. 

The critical question is whether the pre-contractual agreement is legally binding. Until very recently, pre-contracts were regularly violated in Bangladesh and were rarely enforced. Footballers were almost free to respond to more lucrative offers from other clubs despite the existence of pre-contracts. 

However, the Player Status Committee of the Football Federation, in its decision dated 23 November 2021, recognised the validity and enforceability of the pre-contract concerning a dispute over a national footballer who signed a pre-contract with Bashundhara Kings FC to play for them in the 2021-2022 season of the Bangladesh Premier League (BPL). 

The player also accepted partial payment from the Club and was contractually bound to register as a player of the Club on the opening of the registration window of the Football Federation. However, it was alleged that the player received a better offer from a rival club of Kings. Kings, too, had never challenged the violation of the pre-contracts in the past.

Unlike previous years, Kings did not let this violation of its pre-contract go unchallenged. On 16 November 2021, Kings applied to the Player Status Committee to enforce the pre-contract and to direct the player to register with them for the seasons or, in the alternative, to suspend him for one year. The hearing was conducted on 21 November 2021. 

During the hearing, the question arose about when a pre-contract is binding on the parties. It was argued that such pre-contracts are not only common in Bangladesh but in most countries and have led to a number of decisions from the FIFA Dispute Resolution Chamber (DRC) and the Court of Arbitration for Sports (CAS) in Switzerland, both of which have ruled in favour of the enforceability of pre-contracts. 

In the decision of CAS in CAS 2015/A/3953 & 3954, the enforceability of the pre-contract was held to be dependent on whether the pre-contract had "(i) a date, (ii) the names of the parties, (iii) the duration of the contract, (iv) the amount of remuneration, and (v) signature of the parties." 

Upon submissions made by the counsels of the Kings, the Committee was satisfied that the pre-contract in question had all the essential elements of a contract; hence it was binding on the parties. The Player Status Committee in its decision dated 23 November 2021, directed the player"to reach an amicable settlement with Bashundhara Kings within 72 hours and inform the Bangladesh Football Federation of such settlement through the complainant Club." 

It was stated that the Player Status Committee would take action under Regulation 26.8 of the Bangladesh Premier League Regulations, 2021-2022. This meant the player was liable to be suspended for one year if he did not amicably settle his dispute with Kings. 

The decision of the player status committee sends a clear and profound message to the players, the clubs and above all, to the football industry of this country: rules are there to be followed, not to flout. 

Procedural rules exist to ensure regulations are followed efficiently and in an orderly manner. They lay down the actions that need to be taken by the players and clubs—failure to enforce compliance results in delay, expense, and chaos. The system of sanctions is the method used to combat these problems. Therefore, the Football Federation had finally taken a strong stance against pre-contract violations.      

The Football Federation should be less tolerant than hitherto of unjustified disregard of the pre-contract. To combat the culture of disregarding pre-contracts, the BFF should take a more robust approach and make sure that enforceability is maintained. 

To stop the haemorrhaging of club resources and costs on the unwanted dispute, the Football Federation should continue its firmness. An uncompromising approach to compliance has worked in other jurisdictions. Once it is well understood that the BFF will adopt a firm line on enforcement, the expectation is that the contractual duties will be performed in a more disciplined manner. 

The ruling of the BFF over this pre-contract matter is perhaps the most critical decision on the enforceability of pre-contract in recent years. This ruling marks a watershed in the game of football in this country. 

Following the decision of the Football Federation on 23 November 2021, the legal position and practice in Bangladesh are now in compliance with the international standard and in line with the decisions of the FIFA DRC and CAS. 

Both footballers and their clubs should study the contents of pre-contracts and ensure compliance with the same as the Football Federation will strictly enforce them. 

It is expected that pre-contracts are now made to be respected. This proposition is not aimed at restricting the movement of the players(between teams) in general but to ensure that the rules have been complied with. Provisions of pre-contracts must mean what they say. 

Sunny A Hoque, Ehsan A Siddiq , Mohammad K Shahnewaz & Faran Md Aaraf are all Barrister-at-Law at the Law Counsel, a leading law firm.