The Covid-19 pandemic has created unprecedented upheaval and turmoil in the world of sport. It has affected every aspect of professional football from stadium closures to the cessation of training and competitive matches. Women’s football has been particularly affected with The FA Women’s Super League (‘WSL’) and The FA Women’s Championship season (after an initial suspension) officially ended on 25 May 2020.
However, with the transfer window in English women’s football now open, clubs will already be looking ahead to the 2020/2021 season which is due to start on 5 September 2020. The recent financial contribution from the Premier League to enable the 2020/2021 season to start will hopefully mean that clubs will have the vital resources necessary to enable the safe return to play for their female players and staff.
Based on our experience at Centrefield of advising on a wide range of issues in women’s football, some of the key areas that English clubs which operate a women’s team will want to consider as they plan for the start of the new 2020/2021 season are as follows:
The WSL’s standard transfer forms must be used by clubs when transferring players, however, it is worth considering putting in place a more detailed transfer agreement to document the terms agreed between clubs in respect of the transfer of a female player, whether it is for a domestic purchase or sale or an international purchase or sale.
A transfer agreement should cover areas such as clear and comprehensive payment terms and whether any conditions precedent must be satisfied (e.g. the player passing a medical). For international transfers in women’s football, FIFA’s ‘Transfer Matching System’ must be used. In FIFA’s 2019 ‘Global Transfer Market Report’ on women’s professional football, it was noted that just two clubs included a sell-on fee in their transfers of female players. As women’s football continues to develop and the volume of transfers increases, it is likely that sell-on clauses will be used more frequently in transfer agreements for female players.
The WSL and FA Women’s Championship ‘Competition Rules’, provide that a female player must be either a ‘Contract Player’ or a ‘Non Contract Player’. Any change in a player’s status (i.e. from a ‘Non Contract Player’ to a ‘Contract Player’) requires the player to sign a new registration form and to be re-registeredwith her club, otherwise the player will be ineligible to play in competitive matches and the club is likely to face disciplinary action.
Whilst The FA/WSL standard ‘Women’s Football Contract’ must be used with signing a professional female player, many clubs choose to add additional terms dealing with a range of areas such appearances/goal bonuses, signing-on fees, loyalty payments, accommodation expenses and the impact of promotion/relegation on salary etc.
A club may also wish to address in its playing contracts some of the issues which have arisen as a result of the impact which Covid-19 has had on the 2019/2020 women’s football season. For example, how certain benefits/bonuses should operate if any of the club’s competitive matches are postponed or the season is suspended, cancelled or otherwise not completed in full and also if matches are required to be played ‘behind closed doors’ (which is likely to be the case for at least the start of the 2020/2021 season) resulting in clubs being unable to generate revenue from fans in attendance at matches.
In relation to playing contracts, our experience is that an increasing number of clubs with women’s team are seeking to secure the best talent over their rivals by entering into a ‘Pre-contract Agreement’ with certain female players in the same way such agreements are commonly used in men’s football.
#Club Rules/Disciplinary Matters
Women’s football operates under the framework of The FA’s rules and regulations which must be adhered to by players and clubs. This includes areas such as misconduct, disciplinary matters, treatment of match officials and the resolution of disputes etc. In addition, it is recommend that clubs should consider having their own policies and procedures in place in the form of a ‘Player Handbook’ or ‘Club Rules’ to ensure that players are clear about what is expected of them in relation to a wide range of areas such as the use of social media, the consumption of alcohol, expected behaviour as club representatives/ambassadors when on club duty and away from the club and the requirement to make club appearances etc.
The FA/WSL standard ‘Women’s Football Contract’ requires clubs to confirm whether an Intermediary was involved in the player’s transfer or contract renewal. More and more female players are using the services of Intermediaries so it is important that clubs have the appropriate documentation in place, including if there is a dual representation structure as this can have regulatory and tax compliance issues. Any payments made by clubs to Intermediaries representing any of its female players should also be taken into account in the player’s playing contract (i.e. as a benefit in kind). It is also important that any Intermediary working with female players who are minors, is authorised to work with minors in accordance with The FA Regulations on Working with Intermediaries and has parental consent before approaching the player.
The FA/WSL standard ‘Women’s Football Contract’ is silent on maternity rights for professional players. This means that The FA leaves it to clubs to exercise their discretion as to what maternity entitlements they wish to offer their female players. In the absence of a bespoke maternity policy, players will be legally entitled to statutory maternity pay and leave. With more female athletes/players continuing their professional careers post pregnancy, it is important for clubs to be on the front foot in their approach to this important area in women’s professional sport.
Coherent and robust service agreements with managerial/coaching staff should be in place to deal with a wide range of issues such as the payment of bonuses/benefits, confidentiality, restrictive covenants and termination (including dealing with the scenario if a key member of the managerial/coaching staff is approached by another club etc.).
A club may also wish to deal with Covid-19 related issues in a service agreement or by way of a variation, for example changes in salary if the club is required to play matches ‘behind closed doors’ or matches are postponed/suspended. Also, when an employment relationship comes to a premature end, a settlement agreement will be needed in order to appropriately deal with arrangements on exit.
In most cases, non-EU/EEA nationals will need to be sponsored by a club in order to be able to work in the UK. This requires clubs to have (and maintain) a valid sponsor licence with the Home Office. A club can elect to have one licence covering the women’s and the men’s teams, or a separate licence for each team. There are pros and cons to both, so clubs should consider which structure best suits their needs.
Clubs should be mindful of the need to obtain a ‘Governing Body Endorsement’ from The FA before they can sponsor a non-EU/EEA player or manager/coach, so consideration will need to be given to The FA’s applicable WSL/FA Women’s Championship criteria as part of the recruitment process.
Non-EU/EEA players or managers/coaches would be sponsored under the Tier 2 (Sportsperson) or Tier 5 (Creative and Sporting) categories of the points based system. The key factors in determining which sponsorship route is used are: the length of the proposed employment; the migrant’s English language capabilities; and timing issues.
Clubs should also be aware of, and comply with, their ongoing sponsorship duties in respect of the migrants they employ, including reporting certain changes in their working conditions to the Home Office, (e.g. when a migrant player is loaned).
It is worth noting that the Home Office has introduced temporary concessions to assist certain migrants as a result of disruptions caused by the Covid-19 pandemic, and clubs should consider these, in particular for those migrants they wish to recruit or extend their stay ahead of the start of the 2020/2021 season, to see if they/the migrants can benefit from such concessions.
Also, the full implications of Brexit on UK immigration after the transition period ends on 31 December 2020 will need to be taken into account by clubs, including: (i) ensuring that those EU/EEA employees who need to apply to the EU Settlement Scheme in order to continue to work in the UK do so within the required time limit; and (ii) monitoring the rules/guidance in respect of the new points based systemwhich is due to take effect from 1 January 2021 once freedom of movement with the EU has ended.
The premature end to the 2019/2020 women’s football season in England as a result of Covid-19 meansthat many clubs may have been unable to fulfil the full extent of their obligations to sponsors/partners in connection with that season. It is therefore important for clubs to review the terms of their existing sponsorship/partnership arrangements in detail. In particular, focus should be on any provisions which expressly deal with how any renegotiation/replacement sponsorship rights provisions operate and their relationship with any repayment obligations, as well as the terms of any force majeure provisions. Parties may want to consider negotiating a variation to their existing agreement in order to preserve the commercial relationship going forward and to document any replacement rights which are to be provided (e.g. player appearances via online platforms etc.).
There is also the prospect of increased publicity for women’s football if, as predicted, broadcasters step in to televise more women’s football in the 2020/2021 season, particularly if matches are likely to be played ‘behind closed doors’ which could assist clubs’ commercial programmes. Clubs may also want to revisitthe terms of any template sponsorship/partnership agreements they use in connection with these types of issues.
If you would like more information on any of the points raised above or require advice in connection with any matters in women’s football, please contact: Deirdre McCarthy (Senior Associate), email – DeirdreMcCarthy@centrefield.law or call 0161 672 5460.
Please note the information contained in this article is intended as a general review of the subject featured and is not intended as specific legal advice.