Joe Bonilla, a lawyer specializing in sports law and professor of the blended Sports Law Diploma course in Colombia, assesses the latest national and international reforms that affect, among other matters, women’s football, coaches, anti-doping legislation and the new sports law in Colombia
The world of football has been in turmoil lately over the project to create the European Super League, but power struggles and discrepancies in the governance of the most popular sport on the planet are becoming increasingly evident as it moves towards the professionalization of its management. The contracting of professional athletes, transfers, the resolution of disputes before federations and arbitration tribunals, the management of intellectual property and image rights differ greatly depending on where in the world you are. Sports law has become particularly relevant in recent years.
Johan Cruyff Institute will offer, starting on June 15, the first blended Sports Law Diploma course in Colombia that will include Joe Bonilla among the professionals who will teach the module in Bogota. With more than 16 years’ experience as an advisor on sports law and labor law to national and international clubs, companies, players and managers in the football industry, Joe advises renowned Colombian entities such as América de Cali, Millonarios, Júnior, Equidad, Independiente, Santa Fe, and others beyond its borders such as Chapecoense of Brazil or Chelsea of England.
We talked to him about the latest national and international reforms in sports law, about the differences that still exist between countries and continents, and about two groups that, after years of demanding their rights, are beginning to be heard. “FIFA is a reference in sports law,” says Joe Bonilla, a current member of the board of directors of América de Cali S.A. and of the Colombian Association of Sports Law, as well as a founding member and director of the South American Association of Football Lawyers, among others.
FIFA has introduced two sets of far-reaching reforms that will provide more protection for female football players and coaches. What will be the most important changes for both groups?
As far as coaches and technical directors are concerned, the new FIFA rules protect them under international regulation, which was not the case before. For us, it has represented an important step forward, especially because these are workers who previously had to go to local jurisdictions, for example, to make a claim before the ordinary labor jurisdiction or before the civil jurisdiction, to have their rights respected and recognized. This measure protects them and is generating a regulatory framework that will give greater legal security to coaches, but also to clubs and federations. What FIFA is looking for with this new rule is contractual stability, both in the case of players and managers.
In the case of female football players, FIFA establishes certain labor measures that are designed to protect players, for example, who become pregnant. I believe that this is a response to a historical demand of the players, who will be protected by the highest body in world football. The regulation establishes that clubs are obliged to guarantee them 14 weeks of paid leave in the event of pregnancy and must facilitate their return to work after the childbirth period.
“FIFA establishes certain labor measures to protect female players, for example, who become pregnant. This responds to a historical demand of the players, who will have the protection of the highest body of world football.”
Women’s football is clearly in a phase of expansion, but the differences with men’s football are still very significant. What do you think should be the next major legislative reform in women’s football to bring it closer to the professionalization they are demanding?
We consider it essential that the first division of Colombian football organizes the women’s tournament on equal terms with the men’s, especially in terms of duration and club participation. It is essential, for example, that every professional football club that joins the league must have a professional women’s team as a requirement for participation in the official men’s tournament. Even if it is not a club team, there should be an alliance of clubs, and that alliance should exist for the purpose of participating in official tournaments. The aim of this measure would be for clubs to sign longer employment contracts than those they are currently signing, which are for two or three months, in order to extend them to a minimum of six months or a year. Currently, the women’s football championships are extremely short if you take into account that for the whole of 2021, the Colombian women’s football tournament will last between one month and a half and two months.
“We consider it essential that the first division of Colombian football organizes the women’s tournament on equal terms with the men’s, especially in terms of duration and club participation.”
The Colombian criminal code has introduced an essential modification for the protection of athletes in matters of doping. Are there differences in relation to other countries?
It is important to clarify that the criminal jurisdiction of each country has nothing to do with the international sports jurisdiction on doping. Each country defines the conducts it considers necessary to penalize. For this reason, many states decide not to punish people who engage in doping practices, as they find no purpose in such a sanction. We believe that this modification is sometimes excessive and even unnecessary in order to ensure the protection of legal assets such as public health, because often such behavior does not even transcend the personal sphere of the individuals in question. This is an issue that has generated very interesting debates about the need to involve criminal jurisdiction in order to eradicate doping, a fight with which we clearly agree. One must, as a matter of principle, compete on equal terms without external factors that affect or enhance sports performance.
What is the biggest problem in doping issues?
In my opinion, there are several problems related to anti-doping practices. First of all, I believe that there is over-regulation in this regard, in the sense that, even when some of the substances prohibited by the World Anti-Doping Agency are administered accidentally and without a clear intention of improving sports performance, athletes usually end up being severely punished or sanctioned for such conduct that is performed without that intention.
This is the case, for example, of Santiago Silva, a Uruguayan football player who was trying to become a father and administered a substance as part of his medical treatment that raised the levels of testosterone in his body. Here it is absolutely clear that the player’s intention was not to increase his performance by using substances prohibited by the Anti-Doping Code, but to exercise his right to start a family. In this case, the player was sanctioned because he violated the anti-doping rules and we believe that here the intention must be taken into account. There are several known cases of athletes whose professional careers end because of such strong persecution policies, for not taking into account the context. For me, it is important to analyze the factors in each particular case, with a comprehensive understanding of the situation to determine whether or not it is doping, or if it is for a totally different reason.
“For me it is important to analyze the factors in each particular case, with a comprehensive understanding of the situation to determine whether or not it is doping, or if it is for a totally different reason.”
Do you consider it necessary and opportune to update the sports law in Colombia in search of better results and transcendence at the South American and world level?
In my opinion, it is absolutely necessary and opportune to update the Sports Law because the rules we have are very old and their content does not correspond to the current sports reality. Our sports law dates back to 1995 and the necessary updates have not been made. It is important to bear in mind that Colombia is a country with a relatively new sports history in the world context. Almost a century has passed since the first laws on physical education, recreation and sports were formulated in many countries. These rules in Colombia do not take into account these variations generated by the development and professionalization of the sports industry. Undoubtedly, I believe that it is necessary to update the sports legislation and adapt it much more to the current reality.
“It is absolutely necessary to update the Sports Law in Colombia because its content does not correspond to the current sports reality.”
Football is the king of sports in terms of popularity and as a socio-economic driver worldwide. Is it also at the forefront in terms of legislative regulations?
Compared to other sports, I would say yes. FIFA, through its rules and regulations, which are generally updated from time to time, usually every year, has been a reference for other sports federations and has even tried to harmonize its regulations with the laws in each country. It has created fundamental regulations that contain some rules that must be applied in a mandatory manner by each association, but it also gives the power to these associations to establish rules that are adjusted to the legislation of each of these federations, to the local legislation.
For example, in our country we can refer to the figure of the protected period of employment contracts with athletes. It was created to establish a period of protection for clubs that sign long-term employment contracts with football players. It makes sense that, for legislations that allow the signing of contracts of five or more years, a protected period of two or three years is provided, depending on the age of the player, to generate this contractual stability for the first years of the contract. However, when we bring this regulation to Colombia, we see that the maximum period of fixed contracts in our country is three years. So, applying the FIFA provisions regarding the protected period literally would completely limit the hiring of football players when this figure covers the entire term of their employment contracts, because they are forced to remain even against their will in those clubs during the term of the contract if it was signed, for example, for three years. So, in this case, it would not make sense to give a literal application to the FIFA regulations. But in general terms, I would say that football’s sporting regulations are at the forefront worldwide.
Does football eat at a separate table, or does it have many points in common with other sports in terms of legislation?
Football does differ from most regulations if you take into account that it is a team sport in which it is necessary for players to sign a professional employment contract, unlike other sports such as tennis or individual sports in which the labor regulations are not essential. In tennis, for example, the athlete’s relationship is not with a club but rather with a sponsor. Even in team sports, football has created the figure of economic rights, which is exclusive to this sport and has led to endless controversies.
What are the biggest differences in terms of the cases you represent in South American and European football? Are the conflicts of a different nature or very similar?
Regardless of geographical location, they are two confederations attached to FIFA and both have the same sporting regulations at the national level. However, as FIFA itself states, each association can issue its own regulations in line with local provisions. In European football, there are longer sports agreements and employment contracts than in South American football. The conflicts are very similar in nature, but with some variations in specific aspects that respond to the specific reality of each of these federations. This is the case, for example, of the players’ participation in transfers, which in Colombia is 8 percent, in accordance with the Players’ Statute of the Colombian Football Federation. In our day-to-day business, we have to deal with multiple claims related to the payment of that percentage, regardless of whether the transfer is international or domestic. In many countries, there are no such percentages established in the regulations in favor of the player.
“In European football, sports agreements and employment contracts are longer than in South American football. Conflicts are of a very similar nature, but with some variations.”
Johan Cruyff Institute Colombia will deliver the first blended sports law diploma course and you will be part of the faculty that will teach the module in Bogota. What are the great advantages of this program and who is it for?
One of the great advantages of participating in this program is that it will address a wide variety of topics that allow you to acquire basic knowledge in, for example, the area of International Sports Law, contractual matters, disciplinary proceedings before international federations such as FIFA, and confederations such as UEFA and Conmebol. We will talk about doping procedures and arbitration proceedings before the Court of Arbitration for Sport, paying special attention to football as the most powerful industry worldwide.
The program of this Sports Law Diploma has been specially developed so that participants can learn about the main elements, conflicts and solutions that professionals face on a daily basis, as in our case. It is aimed at those people who wish to complete their training with a specialized course in sports law or, for example, athletes or former athletes who want to be trained in this area once they have finished their sports career and want to continue working in the sports industry because, without any doubt, they will acquire a better knowledge about the real concepts of sports law. So, we invite you to be part of this program and benefit, not only from the very complete and strategically designed course, but also from the teachers and professionals who teach the sessions of this course, who live sports law in real life. Knowing practical cases allows you to acquire a much more complete knowledge than if it were simply a theoretical diploma.