Why non-compete clauses have no place in professional football
For the Malta Football Players Association (“MFPA”), it was hard not to hear echoes of a pre-Bosman era, when a Brazilian player sought out their legal help at the end of 2022 to challenge a non-compete clause.
In Malta, the transfer fee at the end of a contract had only just been banned a little over three years ago. It was a long arduous road to remove this restraint of trade for players, so it was an unpleasant surprise to see that clubs were still trying to establish clauses that would allow them to retain influence over a player’s employment opportunities even though they were no longer contractually bound to them. So, the legal team of the MFPA, with the help of FIFPRO, set out to ensure that such a restriction would be declared unenforceable and would constitute an unlawful restraint of trade. The case came at a particular interesting time given that a discussion had just emerged in the USA about the legality of non-compete clauses in general, with the Federal Trade Commission proposing a new legal framework which would ban employers altogether from imposing non-compete clauses on their employees, as these clauses would hurt workers and harm competition.
The stakes were high. For the Player it could have meant the end of his career and for all football players in Malta, it could have meant their brief period without structural restraint of trade would see new obstacles. For players worldwide, it could set a very negative precedent constituting a tool that would potentially limit employment opportunities and keep wages down.
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Roy Vermeer is working in the legal department of FIFPro, the World Footballers’ Association and provides legal advice to the 66 national players’ union affiliated to FIFPro. He is currently also a member of the FIFA Players’ Status Committee and the FIFA Dispute Resolution Chamber.
Sihon Gauci Gonzalez is Head of the Legal Department within the Malta Football Players Association, as well as a Board Member in the same organisation. She has not only represented hundreds of players in legal disputes, but has also been actively involved in lobbying for structural changes for the protection of players. In 2020, Sihon became the first Maltese national to be appointed on the FIFA Football Tribunal (Dispute Resolution Chamber). She also serves on the FIFPro Disputes Committee.