Coach Nabamwinika: Administrative leave or constructive dismissal
Administrative leave!!!!!! the latest trend to have hit the Zambian Football scene at least in name.
Technically this is something that has existed in another form. I first heard this in the early 2000s in Kitwe amongst former coaches and players commenting on the decision to stop a coach from his duties by club officials aka Naba Mwiminika for what they termed poor results.
However, what is administrative leave? does it even exist in football? Closer to today, 2014 to be precise the current form of administrative leave was employed by a Lusaka based side on one of the leading coaches then following a string of undesired results, it is the only instance that I can remember that almost resulted in a claim against the club but also served as a bargaining chip for the coaches’ next contract.
I recall at the CAF A training conducted at Red Roof in Roma, I passed a comment about the need for coaches to know their worth and to realize that they are actually professionals like any other profession, be it Doctors, Accountants, Teachers, etc.
They too have rights and obligations under the contracts they sign with their employers and no their employment by clubs is not a favor but rather a recognition of the value they hold and that value they can add to the clubs.
I moved on to the need to respect contracts, and gave an example of the Late Dennis Lota who was also a participant at the training, I advised coaches to respect the contracts they sign and jokingly said a repeat of the FC Sion scandal should not occur in his coaching career. Sadly, this trend continues to date, the reason I thought I should share my thoughts on the matter.
In case of clubs, coaches and officials are unaware, contractual relations between coaches and clubs are subject to/of the Regulations on the Status and Transfer of Players and indeed any national employment laws (one of the instances where FIFA recognizes the rights of players and coaches for employment-related disputes to seek legal redress before ordinary courts under Article 22 of the Regulations).
Until January 2021, the Regulations did not have a specific provision for employment-related issues but did have jurisdiction. Maybe the case of one Dario Bonnetti and other coaches against FAZ is a testimony of this but I have not once heard (save for the instance mentioned earlier) of a similar issue locally despite advice and the rules existing.
Annexe 8 of the Regulations specifically provide for the rules for the employment of coaches.
Article 1 (4) of the annexe 8 provides that Each association shall include in its regulations appropriate means to protect contractual stability between coaches and clubs or associations, paying due respect to mandatory national law and collective bargaining agreements (bear in mind that where an association is yet to have its own rules the FIFA rules are applicable).
Article 3 of the annexe 8 provides for the need to respect contracts to the effect that A contract may only be terminated upon expiry of its term or by mutual agreement (not by administrative leave).
Article 6 of the annexe 8 provides for the consequences of terminating the contract without just cause. Article 6 (1) provides in all cases, the party in breach shall pay compensation.
Article 6 (2) provides how compensation is to calculated and I refer only to Article 6 (2) (a) which is of interest to the subject matter; In case the coach did not sign any new contract following the termination of their previous contract, as a general rule, the compensation shall be equal to the residual value of the contract that was prematurely terminated.
What is worse Article 6 (4) of the annexe 8 provides that Any person subject to the FIFA Statutes who acts in a manner designed to induce a breach of contract between a coach and a club or association shall be sanctioned.
This by the way includes the officials sending the coaches on administrative leave knowing fully well they have no intention of recalling them.
My view purely based on the black and white letter is that this so-called administrative leave is a poor attempt by clubs to illegally terminate contracts and escape the consequences, I mean which coach having been sent on administrative leave or suspended has ever come back to his role, the trend is that soon after the announcement and the circulation of a statement we hear another coach has been appointed in the role.
This screams constructive dismissal as provided in our Nation laws. This administrative leave crusade is a mere farce by clubs to justify illegality.
My advice to clubs and coaches is this, lets learn to respect contracts, they are not just some formality that must be ensured, contracts actually mean something and if clubs and coaches want to be taken seriously and fit the professionalism they sing and seek, let’s start by being professional about our relationships.
A contract is an agreement between the parties, make them performance based if you like so that you have a justified reason to terminate, or agree to mutually separate at an agreed sum when either parties feel the contractual relationship no longer provides the benefits they sought when entered into.
Just so we are clear, I also call out coaches who think they can wake up and just leave, you too are subject to sanctions and In fact the clubs can claim from you.
Article 6 (2) (d) provides Compensation shall be calculated on the basis of the damages and expenses incurred by the club or the association in connection with the termination of the contract, giving due consideration, in particular, to the remaining remuneration and other benefits due to the coach under the prematurely terminated contract and/or due to the coach under any new contract, the fees and expenses incurred by the former club (amortised over the term of the contract), and the principle of the specificity of sport.
I call on all well-meaning administrators and coaches to find better ways of dealing with issues than the current circus that we seek to promote, let’s not justify wrongs by trying to make things sound better than they are, in the same way we respect the rules on the pitch let us respect them in the “Board Room”.
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