A Dutch football coach, René Hiddink, has prevailed in a FIFA Football Tribunal against his former employer, Football Association of Maldives [FAM], in a case involving the use of a force majeure defence during Covid-19.
The decision is important in its restatement and application of FIFA’s Covid-19 policy and the interaction of that policy with ‘force majeure’ provisions in football contracts – a clause commonly found in employment agreements which entitles a party to be excused from their obligations if an event occurs which is beyond reasonable control.
Background of the case
In January 2021, Hiddink and FAM agreed the terms of an employment contract whereby Hiddink was appointed as assistant coach of the Maldives’ Men’s National Football Team for a three-year term.
However, barely three months into his tenure, FAM informed Hiddink that football in the Maldives would be halted indefinitely due to the Covid-19 pandemic, and that there was not enough money to continue employing him in his role.
Days later, FAM sent Hiddink a termination notice, stating that his contract of employment was being terminated due to the Covid-19 pandemic, referencing the ‘force majeure’ clause in Hiddink’s contract.
Hiddink filed his claim at the FIFA Tribunal in September 2021, seeking damages equivalent to the remaining value of his employment contract. FAM resisted the claim, contending that the parties had reached a ‘mutual understanding’ to terminate the contract, and that the termination served the ‘common welfare’ of football in the Maldives given the ‘significant financial and economic losses’ caused by the pandemic, which themselves constituted a force majeure event justifying termination of the contract.
In its decision, the FIFA Football Tribunal rejected FAM’s force majeure defence in its entirety, noting – as argued by Mr Hiddink – that the contract was entered into during the pandemic and, therefore, the effects of the pandemic could not have been unforeseen.
As a result, FAM has been ordered to pay Hiddink the full remaining value of the contract as damages, together with interest.
David Winnie, head of sport at Blaser Mills Law, said: “Understandably, Mr. Hiddink is absolutely delighted with this outcome and our client’s stance and courage in bringing this matter before FIFA’s Football Tribunal has been fully vindicated.
“A force majeure defence based on Covid-19 cannot be used as a blanket justification to excuse a party from its contractual obligations, and each situation must be considered on a case-by-case basis.
“This decision upholds FIFA’s Regulations on ‘termination without just cause’ and sends a clear message to football worldwide on the parameters and limitations of using a force majeure defence during Covid-19.”
Ashley Cukier of Littleton Chambers assisted the plaintiff on the case.
