Bernard Aftermath

Published 11 February 2011

Signing of a first professional football contract and training compensation in France: A practical aftermath of the Olivier Bernard Case By Martin Fauvel.

On 16th March 2010, the European Court of Justice issued an important ruling1 regarding the training compensation due when a young footballer, instead of signing his first professional contract with his training club, decides to export his services in another EU state.

Olivier Bernard’s choice to leave Lyon for Newcastle and its legal consequences have been extensively commented since, specifically by the light of their contribution to the free movement of workers as guaranteed by Article 45 of the Treaty on the Functioning of the European Union (ex Article 39 of the EC Treaty). It is also interesting to notice that this case led to a reform of the rules governing the signing of a first professional contract in France.

The formation of young players in France takes place in a precise framework defined, depending on the situation, by one or two documents. The first one is a formation contract (“convention de formation”) planning the modalities of the player’s formation. The second one, only offered to the most talented youngster, is a work contract, or rather a set of work contracts: usually, such a player signs a two-year aspiring contract (“contrat aspirant”) at 16, followed by a two-year trainee contract (“contrat stagiaire”) at 18 before, for the few lucky winners, the Holy Grail of a professional contract2. Unsurprisingly, most of the disputes between players and clubs arise at the time of the signing of a professional contract3.

Text in force in 2000 

Bernard’s contender contract expired at the end of the 1999-2000 season, the relevant provision being at that time Article 23 of Chapter IV of the French Professional Football Charter (“Charte du Football Professionnel”). This text used to state the following:

“Upon normal expiration of the contract, the club has the right to insist that the other party signs a professional player contract.

2. If the player refuses to sign a contract as a professional player, he won’t be permitted to sign for another club in the LNF4 under any status whatsoever for a period of three years, without the written agreement of the club who trained him and his situation will be settled as follow: Redeployment as an amateur player …”

Consequently a young player refusing to sign his first professional contract for his club had only three choices: to obtain the written agreement of this club to sign elsewhere in France (a conceivable but unsecured option), to suspend his professional career during 3 years (hardly a choice!) or to sign a contract abroad, insofar as the LFP cannot impose its regulations to foreign clubs. That’s why Olympique Lyonnais never claimed for the application of this article of the Charter and sued Olivier Bernard on the ground of breach of a fixed term contract under the French Work Code. 

Content of the reform 

This situation has been covered since the beginning of the 2008-2009 season by Article 261 of the Charter, which allows a young player in such a situation to sign his first professional contract for another French professional club as long as this club pays to the previous one different fees calculated in accordance with a complex scheme taking into account: 

  • The number of years spent by the player in the former club between the age of 12 and 20 and the quality of this club’s training academy;
  • Any possible cap for the national U19, U20, U23 or A teams.

Those fees are cumulative up to a maximum of €1.5 million. Furthermore, the training club may be entitled to receive further payments on certain circumstances:

  • If the player renews his contract with his new club before the end of the season when he turns 23, his new club has to pay a fee equivalent to 12 months of the player’s new wages;
  • If the player is transferred to another club –whether in France or abroad, 20% of the transfer fee is due to the training club.

In that case, the sums paid under the previous scheme are deducted from the sums calculated here.

But this article remains evidently inapplicable to a player signing is first professional contract abroad. In consequence, the question of knowing if this new provision – obviously still violating the free movement of workers – is proportional to the legitimate aim of protection of football clubs’ training of youth players is of little interest, Article 45 TFEU being inapplicable to a purely internal situation. Moreover, Article 20 and Annex 4 of FIFA’s Regulations on Status and Transfer of Players now provide a legal basis to claim a training compensation in that case5. 

Nevertheless, the disputes related to the signing of a first professional contract abroad instead of with the player’s training club seems to be less and less topical. Indeed, the two last cases of French players signing abroad which got media attention – respectively Gaël Kakuta for Chelsea FC in 2007 and Paul Pogba for Manchester Utd in 2009, both at the age of 16 – prove that foreign clubs tend to act even before the players are linked to their training club with an aspiring contract. And this practice is likely to continue as long as FIFA will not ban completely the transfers of minors.

1 Case C-325/08, Olympique Lyonnais SASP v. Olivier Bernard, Newcastle United FC

2 This is only one of many possible sequences depending on the age of the player and/or his status when he signs his first contract or his qualities. For instance, Bernard signed a three year contender contract (“contrat espoir”, no longer available today) in 1997.

3 For a similar case, see also : TAS/2004/A/761 SASP Olympique de Marseille (OM) v. FIFA, Arsenal FC and Mathieu Flamini (in French).

4 The former name of the current LFP (Professional Football League), in charge of all the professional clubs.

5 It is important here to note that Article 2 of FIFA’s Regulation on Status and Transfer of Players provides a broader definition of the professional footballer status than the French one. Any player signing an aspiring or trainee contract (and consequently not a professional contract) is considered as a professional player by FIFA.