FTK Blog: Lawful and unlawful consequences of transfer windows.

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As the Summer transfer window draws to a close for this year, the finishing touches to squads are being applied throughout the Premier League in time for the deadline of 5pm tomorrow. Of particular interest to Gooners will be the vexed question of which Goalkeeper will be brought in to support our Title aspirations. Much speculation continues over the probable transfer of Australian Mark Schwarzer from Fulham. The situation has become very complex. The imposition of transfer windows has very negative effects on the movement of players and with those can come consequences

Rumours abound concerning failed medicals, passed medicals and rows between Schwarzer and Mark Hughes on Fulham’s training ground. What is clear is that Schwarzer wants to come to Arsenal, Arsenal would like to sign the player, but Mark Hughes is being as stubborn as he is entitled to be given that the club holds the player’s registration. Given there is no love lost between the two managers, one can expect that this will go tight up the wire with more twists and turns than a Persian belly dancer’s waist! Another unwelcome consequence of transfer window deadlines.

In addition to the normal aggravating consequences of transfer windows there is this season to be another. The 25 home grown and over 21 yr squad ruling.  The logical question must then be asked,  what will happen to those premier league players who find themselves left out in the cold after the official announcement of the squads of 25? Well there is a paragraph under the Status and transfer of players that Arsene Wenger drew attention to a fortnight ago and he is absolutely right to warn the Premier League that problems will occur as Players reassess their status within their clubs. The relevant information can be found here.

 

Article 15 Terminating a contract with sporting just cause

 

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 a 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.

 

The article is very explicit and unambiguous the player

may terminate his contract prematurely on the ground of sporting just cause

The just cause? Evidence that he is not selected for at least five games throughout the season or ten percent of Official matches including cup fixtures. The market next year could be flooded with free agents, as the clause can only be activated at the end of the season. The player must be certain that the just cause exists as the penalties for getting it wrong can range from financial penalties on the player and his new club as Article 17 spells out

 

Article 17 Consequences of terminating a contract without just cause

 

In all cases, the party in breach shall pay compensation. Subject to the provisions of article 20 and Annexe 4 in relation to training compensation, and unless otherwise provided for in the contract, compensation for the breach shall be calculated with due consideration for the law of the country concerned, the specificity of sport, and any other objective criteria. These criteria shall include, in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, the fees and expenses paid or incurred by the former club (amortised over the term of the contract) 

 

Getting it wrong could prove very costly to players and clubs. Furthermore, what amazes me is that Clubs still feel that the clauses within the contract which prevent the player going to another team without the agreement of the player’s club are enforceable given the European Community’s strict  employment rules on preventing restraint of trade. So Bosman type rulings can be expected in the Court of Arbitration for Sport (CAS) in Switzerland in due course, which will mean that in future Manchester City could not prevent Shay Given from moving to Arsenal Football Club, in the manner that they have contrived to do this window. Arsene Wenger is very rarely wrong and his assessment should be read with much care within the halls of the Premier League. This is an area where someone will give their name to the next ruling. Could it be the Bellamy ruling? As in Craig Bellamy’s move to Cardiff City? Who knows.

Any change in the rules and contracts could have devastating consequences for major clubs and the previous overlooking of a club tapping up a player could mean major enforcement action from FIFA as in the case of Matuzalém Francelino da Silva a Brazilian footballer who terminated his contract with Shakhtar Donetsk to join Real Zaragoza in 2007. FIFA rules were cited to have been breached in that case and the receiving team was forced to pay Shakhtar 12 million Euros as compensation for the unilateral breach of contract. The decision was later endorsed by the CAS and has set a precedent that clubs and player’s agents need to be mindful of.

“Tapping up” or the unauthorised contact by a club with a player under contract to another team if proved beyond reasonable doubt could lead to the exclusion of the offending club from several transfer windows, and unlike Chelsea in the case of Gael Kakuta, the Lens player who was signed under alleged supposedly questionable circumstances which the West London Club vigorously denied, there would be no grounds for appeal at the CAS if proved. “Tapping up” like unscrupulous players’ agents are a cancer within our noble sport.

The recent betting scandal with professional cricketers of Pakistan for sums of money that are easily lost down the back of agent’s sofas in their multi-million pound dealings with Premiership clubs indicate that if in the game (cricket) that is founded upon fair play, such corruption can occur, what possible skeletons lie in waiting in the closets of Professional Football? The capacity for fraud, money laundering and the involvement of organised crime will in the future be exposed I have no doubt, but by then it will be too late for the vast numbers of innocent fans who will have indirectly paid good money into these grimy coffers.

 

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