José Mourinho, the manager of Manchester United, stated yesterday that his side has no untouchables”. Asked by journalists about whether any players in his current squad were immune from the risk of being dropped, Mourinho is reported to have said that:

“Untouchable in our team has to be the spirit, the commitment, the pride, the commitment to the club, respect to the fans. That has to be untouchable, not players.”

While this interview may lead to uncomfortable reading for some of Manchester United’s marquee players, it may be welcomed by others. Bastian Schweinsteiger, for instance, has found himself frozen out by Mourinho and would undoubtedly relish the opportunity to play for Manchester United again.

Asked at the end of August whether Schweinsteiger would play for Manchester United during the course of the 2016/2017 season, Mourinho is reported as having said:

“I think it’s very difficult to happen. I’m not saying it’s impossible. I’m saying it’s very difficult.”

If Schweinsteiger fails to force his way back in to Mourinho’s thinking and cannot engineer a move in the January transfer window, he will not have played for a whole season. In those circumstances, Schweinsteiger will surely seek a move away from Manchester.

Should Schweinsteiger find himself in that situation, he may find himself in a position to take advantage of Article 15 of the FIFA Regulations on the Status and Transfer of Players (the “FIFA Regulations”). This provision states that:

“An established professional who has, in the course of the season, appeared in fewer than ten per cent of the official matches in which his club has been involved may terminate his contract prematurely on the ground of sporting just cause. Due consideration shall be given to the player’s circumstances in the appraisal of such cases. The existence of sporting just cause shall be established on a case-by-case basis. In such a case, sporting sanctions shall not be imposed, though compensation may be payable. A professional may only terminate his contract on this basis in the 15 days following the last official match of the season of the club with which he is registered.”

In short, Article 15 provides players with the ability to terminate their contract for “sporting just cause” where they have played in less than 10% of their club’s fixtures in the relevant season. This allows a player to join another club without fear of the potential sporting sanctions that may be imposed upon them for a breach of contract without just cause.

In order to avail himself of Article 15, Schweinsteiger will have to show that:

  • He is an established professional.
  • He has appeared in fewer than 10% of Manchester United’s official matches in the 2016/2017 season.
  • He has terminated his employment contract within 15 days of Manchester United’s last official match of the 2016/2017 season.

These all seem eminently achievable for Schweinsteiger. Yet Article 15 is “established on a case-by-case basis” and “[d]ue consideration shall be given to the player’s circumstances in the appraisal of such cases”. This means that FIFA is afforded significant discretion in determining whether the termination of a contract is as a result of sporting just cause.

Guidance on this area is set out in the decision of the Court of Arbitration for Sport (the “CAS”) in CAS 2007/A/1369. The Single Arbitrator in that case stated that the aim of Article 15 is to permit a player to terminate his employment contract unilaterally if he is in a situation in which he is preventing from exercising his professional activity with a reasonable frequency and is, as such, prevented from progressing his professional career. In this respect, the Single Arbitrator confirmed that:

  • The concept of the “established professional” needs to be considered not only on the basis of the player’s age but also on the basis of “his sporting level as demonstrated during his career, in terms of an acceptable standard in the light of the specificity of the sport, the players [sic] legitimate expectations and what is expected of the player in terms of sporting performance.”
  • The participation by a player in more or less than 10% of the official matches played by his club is calculated by reference to the number of matches in which the player played but also according to the time he was on the field.
  • A player cannot rely on Article 15 if he has not notified his club during the season of his dissatisfaction with the fact that he is not actively participating in the team’s games.

Schweinsteiger certainly satisfies the first condition. He is the former captain of the German national team, with whom he won 121 caps and won the FIFA World Cup in 2014. He has also won the UEFA Champions League once, the FA Cup once, the German league eight times, the German Cup seven times, the FIFA Club World Cup once, the UEFA Supercup once and the German Super Cup twice.

Whether he plays in more than 10% of Manchester United’s matches and seeks to rely on Article 15 within 15 days of Manchester United’s last match remains to be seen. If Schweinsteiger wants to take this step, he will also have to take care to notify Manchester United of his dissatisfaction with his position.

There is however a risk on relying on this provision. As noted above, FIFA has discretion in reviewing a purported case of sporting just cause. If it finds that the player does not have sporting just cause to terminate his employment contract, the purported termination may constitute a unilateral termination without just cause, which then falls to be dealt with under Article 17 of the FIFA Regulations. This may lead to the imposition of sporting sanctions, including the obligation to pay compensation and/or a playing ban.

Of course, Schweinsteiger may ignore Article 15 altogether and seek to have his registration transferred in the normal way. Either way, if Schweinsteiger is not involved in any matches for Manchester United for the remainder of the season, it will be a surprise if he remains a Manchester United player at the beginning of the 2017/2018 season.