Taylors Solicitors

| Bookmark | Help | Print

Call us on 01254 297900

Taylors Solicitors Homepage

Player Power – Are Footballers Really Employees?

» Posted on: 11 July 2008
» Posted by: Oliver McCann
» Service area: Employment

» Back to news

» Latest News

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 contracted to.

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.

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 justify dismissal.

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 so? Money!

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 to stay.

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?

Copyright 2006 - 2010 Taylors Solicitors

» Print »

Home | Services | News | People | About | Contact
Blackburn: Rawlings House, Exchange Street, Blackburn, BB1 7JN.
Tel: 01254 297900 / Fax: 01254 696589
Manchester: St James’s Tower, 7 Charlotte Street, Manchester M1 4DZ.
Tel: 0161 200 5690 / Fax: 01254 696589
©Taylors Legal Services Ltd. Company Number 02660001. | Website Terms | Data Protection | Privacy Notice | Sitemap
Regulated by The Law Society