As Summer begins and temperatures start to
rise (well abroad anyway) so does activity during the football
transfer window. And it seems that players are, as ever, trying to
dictate their moves to their favoured clubs. Ronaldo to Real Madrid,
Barry to Liverpool and David Bentley – anywhere away from Blackburn!
Sepp Blatter, the FIFA president, has waded into the Ronaldo
saga with his own opinion – suggesting that players should be free
to play for whom they want and Ronaldo should therefore be allowed
to leave. Wonderful – in fact, why bother with a contract at all?
What is quite insulting is, however, the suggestion that situation
with Ronaldo is like “modern day slavery – a player should not be
forced to stay at a club he is not happy at”! Excuse me? The average
premier league player is earning around £120,000 per month and
Ronaldo much more! Ronaldo signed a contract only 12 months ago for
5 years, hardly the behaviour of a player who is unhappy. Last
season was also his most successful scoring 42 goals, Premier League
top scorer and winning the Premier League and European Champions
League with Manchester United.
What happened to being a professional and playing for a club
regardless of your “desires”? Mr Blatter – a reality check please!
So are the contracts that players sign worth the paper they are
written upon and are they really employees?
Technically footballers are employees of the club they are
A Contract of employment is a “contract of services” ie a contract
to personally serve another. The key elements of a contract of
employment all exist:
- The contract must impose an obligation on a person to
provide work personally
- There must be mutuality of obligation
- The worker must agree to be subject to the control of the
person to who he performs work for
The players get paid weekly or monthly and in return they offer
their personal services to the club to play football.
Copyright 2006 - 2010 Taylors Solicitors
However the sporting regulations which run alongside their
employment contracts together with the astronomical amounts of money
involved in Football is such that their position will never be truly
that of “master/servant” or employer/employee”.
Rarely do you see a player dismissed for gross misconduct and lets
face it, given the publicity that many of the top flight payers get
these days, we know that some have behaved in such a way that would
For example, Joey Barton, formerly of Manchester City and now at
Newcastle United was sent to prison for a vicious assault whilst
‘out on the town’ and given a suspended prison sentence for an
assault on a former colleague. It is the former incident which
resulted in a prison sentence of 6 months upon which Newcastle
United could dismiss Joey Barton for gross misconduct ie. breaching
implied (and possibly express) terms to uphold the club’s image by
bringing it into disrepute. Yet, to date there is no sign of
Newcastle imposing the ultimate sanction of dismissal.
In 2004 Chelsea did however, when they terminated Adrian Mutu’s
contract with immediate effect on grounds of a unilateral breach
going to the root of the contract of employment when he tested
positive for cocaine use. Regulations invoked by the club also meant
that Adrian Mutu had to compensate Chelsea for losses together with
an imposition of sporting sanctions.
So why do football clubs not dismiss when they have grounds to do
Player power started in 1995 when the Bosman ruling was introduced.
Prior to that, a player was “tied” to a club even after his playing
contract with that club may have expired. The player could only move
on once a transfer fee with his new club had been agreed. Jean Marc
Bosman who was out of contract challenged this rule on the basis
that it was in contravention of EU legislation for the free movement
of workers. He won. So now we are familiar with the concept of a
player being “out of contract” and eligible for a free transfer.
This impacted upon transfer fees themselves – the longer a player
worked through his contract the greater the diminution in the value
of his transfer fee. Typically we now see key players sign a new
long term contract almost yearly regardless of the fact they may
have a few years left to run on the contract.
It is difficult for a football club when a player indicates he wants
to leave even though he may have a few years left to run on his
contract. Before the Bosman ruling the club would still get the
transfer fee. But now he can threaten to sit out his contract and go
on a free at the end. The club would be powerless and run the risk
of losing a transfer fee. Yes, they could make him play in the
reserves but that would only hasten the diminution in the players
transfer value. Further, there maybe arguments that to single the
player out unfairly is tantamount to constructive dismissal freeing
the player from his contract with the club.
However another recent ruling has further increased player power.
Andy Webster, a former Heart of Midlothian player, shook the
foundations of football contracts when he walked out on his 4 year
contract with Hearts despite having a year left to run to join Wigan
Athletic. He implemented Article 17 of FIFA regulations which allows
a player aged between 22-28 to unilaterally terminate his contract
as long as he has served 3 years under his existing contract and a
player aged 28+ 2 years or more on his current contract. The caveat
was that the player would be liable to the club for compensation.
However it had been assumed that this would involve an element of
lost profit on the player. But the decision was that compensation
should be based on the level of salary left on the player’s
contract, in Webster’s case £150,000.
Accordingly no matter how long a player’s contract is expressed to
last it will only ever have a maximum protected period of 3 years
and so the player’s transfer value will diminish as the player edges
closer to the end of that 3 years. For example, Frank Lampard has
less than one year to run on his contract now. He could walk out on
his contract now and pay compensation to the tune of £4 million
(value of his annual wages) and recoup that swiftly via a signing on
fee with his new club.
The point is that players do seem to hold the cards these days
despite the fact they are employees. Football clubs are run as a
business – they need to be, as the consequences of going into
administration are dire. This means that most clubs do not wish to
lose out on the transfer value of their players. So with Joey
Barton, why would Newcastle dismiss him for gross misconduct and
kiss goodbye to any transfer value he has? Chelsea could afford to
dismiss Adrian Mutu with Abramovich’s millions behind them. Why
would Manchester United, Aston Villa and Blackburn force their
dissenting players to stay and lose out on significant transfer
fees? It is perhaps only feasible for 12 -18 months depending on how
long is left on the players contract at which stage the club is
forced to cash in. Perhaps why Aston Villa are considering letting
Gareth Barry go now as he only has two years left to run on his
contract. They know that in 12 months time their bargaining power
will have been lost.
And finally, one other common clause not found in ordinary
employment contracts but in a players contract is a “release clause”
which entitles a player to be released from his contract if a
certain club comes in for him or a sum offered over and above the
trigger amount. For example, Damien Duff had such a clause when he
was sold by Blackburn to Chelsea. Once the crystallising factors are
met in a release clause the club loses its power to force the player
So yes, whilst players are “employees” technically their power is
much greater to the extent that it dilutes the position of
master/servant. That aside, player power could lead to their
undoing! If Sepp Blatter’s wishes were ever allowed then clubs would
have no financial incentive to pay top dollar for a player who may
walk out soon after. Transfer fees would also plummet as a result.
So perhaps Mr Blatter has not thought through his comments?