Why footballers are playing to win
With a strike only narrowly averted and new transfer rules, players are taking the law into their hands, says Jon Robins
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The first industrial action in soccer was averted last week, in a season that has already raised the profile of lawyers in the game to unprecedented heights. Following weeks of acrimony, the Professional Footballers' Association (PFA) struck a deal with football's bosses as to their share of television money. The agreement means that the player's union will receive £52.2m over the next three years, having turned down £50 million last Tuesday.
"I definitely think it marks a new era in relations in the game," says Nick Trainer, a solicitor specialising in football law who represents Terry Venables. "It's the footballers and their unions saying, 'We run football and, if we want, we'll call a halt to it'." As he points out, strikes have been attempted before, most notably the attempt by Jimmy Hill 40 years ago to abolish the maximum wage. But no other disputes have come as this one to a strike.
The threatened action is indicative of the increasing power of players and their representatives; however, its legal significance – and legality – is debatable. The Premier League had instructed David Pannick QC to argue that a strike was unlawful under the Trade Unions and Labour Relations Act 1992. Pannick would have applied for an injunction on Thursday if a deal had not been brokered. "It's hardly surprising that the PFA backed down, because the action relates to the league, rather than to the clubs [and the players], and it's difficult to argue that it is a direct valid trade dispute," points out Martin Edwards, an employment partner at Mace & Jones solicitors. Whilst the squabbling over TV money looks likely to subside quickly, this season heralded one innovation that will keep lawyers busy for a long time – Fifa regulations on a new international transfer system. Before the season kicked off, Aston Villa's David Ginola called upon Cherie Blair QC to advise him on his rights after his manager remarked that the player was "carrying a bit of timber". The gossip was that the French star was talking to the PM's wife about the possibility of leaving Villa on the grounds of "sporting just cause", a controversial feature of the new system. Some argue that such litigiousness could be a feature of the new system which came into force on 1 September but has yet to be implemented nationally.
It is telling that the Football Association recently turned to two of the game's most prominent solicitors – Maurice Watkins, a Manchester United director, and associate Leeds United director, Peter McCormick – to represent them in Fifa's new worldwide dispute resolution body. The association will select 40 members to represent players and clubs in a disputes resolution chamber to sort out problems arising from the new system. McCormick is "delighted and proud" to have his name put forward by the FA, but is not expecting an easy ride. "It'll be a major task if we get on to the panel," predicts the senior partner at Leeds firm McCormicks, who sits on the Premier League's legal working party and advises all 20 clubs on such issues. "The regulations are so vague, they're bound to result in lots of cases."
Others are more blunt. Mel Stein, a solicitor with 70 players on his books and who used to advise Paul Gascoigne, calls the new system "a lawyer's charter". John Taylor, a lecturer in sports law at King's College in London and partner at Hammonds Suddard Edge, believes that "sporting just cause" could be "a litigator's dream".
It has been more than six years since the landmark Bosman ruling kick-started a new era in the game. Belgian player Jean-Marc Bosman took his club to the European Court of Justice after he was blocked from moving to a French team because they were not getting a transfer fee. He successfully argued that players were "workers" and so entitled to the benefit of EC treaty rules guaranteeing freedom to work. The ruling left players free to move for no transfer fee when out of contract.
Football, post-Bosman, has seen the balance of power shift towards the players and away from clubs. Sol Campbell's transfer this summer from Spurs to bitter rivals Arsenal, for a deal reported to be worth around £100,000 a week, is an illustration of how far that balance has tipped. Fifa has attempted to square the pure law of Bosman with commercial realities of the game.
Clearly it hasn't been easy; but Fifa, the European body Uefa and the European Commission finally agreed a system in March. According to Maurice Watkins, a partner at Manchester firm James Chapman and Co who chaired the legal subcommittee of a Uefa task force on the regulations, there were three objectives behind the new rules: to preserve the "stability that is obviously vital for building teams"; reward "investment in youth"; and maintain "proper distribution of money".
Whilst the Commission's might has given the regulations the green light from a competition perspective, it remains to be seen whether there will be a challenge on the grounds that the freedom of movement of players has been restricted. Under the new system, contracts will be protected for three years, during which time they cannot be broken unilaterally without "sporting sanctions". The period is reduced to two years for players 28 years and over. For players under 23, a system of compensation has been worked out to protect feeder clubs. As Watkins points out, such a system must be watertight. "I think it's robust from a legal point of view," he adds.
Of more immediate concern is how the regulations will upset the game's economic equilibrium. According to Mel Stein, Bosman was "totally devastating" to lower-league selling clubs who, without transfer cash, faced being driven to the wall. "In my view it meant the end of football outside the top two divisions," he argues. The new system heralds another era of uncertainty which, Stein believes, is exacerbated by the FA's nerves over implementing the new rules. "It's like a rabbit staring into the headlights of an oncoming truck," he notes.
No one can predict how the compensation provisions will work. Josh Smith of Charles Russell's sports group says that they are so vague that it is unclear whether they would even apply to young players, such as the much-coveted 19-year-old West Ham star Joe Cole. The formula for arriving at a figure is based on four different categories of team with, for example, category one being a Premier League club. "The worry is that the lower a club is in a league, the less compensation they'll receive," Smith says. "It's an obvious disincentive and that's got to harm the game." Peter McCormick has been explaining how the formula might operate to Premier League clubs in a series of seminars over recent weeks. It has not been easy. "Albert Einstein couldn't have worked that one out," he quips.
But McCormick believes that the "real legal minefield" concerns "just cause" and "sporting just cause" provisions which allow players to leave a club without facing sanctions. The original assumption was that the former covered normal breach of contract situations and "sporting just cause" was limited to the situation where a player had not been selected to play in at least 10 per cent of the matches in season. According to the lawyer, this has been left wide open for players, agents and, of course, lawyers to argue.
Now that players have decided not to down boots and join the picket line, their lawyers will have more time to devote to such considerations. It look likely that it will keep them busy for some time to come.