The laws of the game

Football may be an industry now, but does that mean its top players can take industrial action? Alex Wade investigates the latest crop of Premiership strikers
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The Independent Online

The England rugby team is on top of the world, but how different it might have been. On the eve of a test match against Argentina in November 2000, the players threatened to go on strike over pay and conditions. Coach Clive Woodward warned that if they did, they would never play for England again. They backed down, and afterwards, in an astute piece of man management, Woodward said that he had a sneaking admiration for his squad's commitment to each other. Many of that same squad are now world champions.

Player militancy is spreading to our other favourite national sports. Most recently, they were made by England players, outraged by what they perceived as unfair treatment of fellow international Rio Ferdinand, before the European Championship qualifier against Turkey. Many observers were left believing that "player power" had gone too far.

But, despite the controversy engendered by the talk of strike action, it appears to be have been more a misconceived act of loyalty than a real threat. Gary Neville, the England and Manchester United full-back, emerged as the prime mover behind the squad's active disquiet, but his rhetoric - redolent more of the days of Arthur Scargill than today's agent-driven football world - had little, if any, foundation in law. As sports lawyer Ian Blackshaw says, the threat to strike was an empty gesture. It had no legal basis.

The players are employees of their clubs, not the Football Association, which engages them for pre-tournament internationals on a per-game basis. Their union, the Professional Footballers' Association, had threatened strike action in November 2001 in a dispute over the players' slice of television revenue. On that occasion the PFA held a ballot among its 3,500 members, which resulted in 99 per cent backing strike action. In the event, a deal was agreed and the strike did not go ahead.

But if the England players had refused to fulfil the country's fixture against Turkey, what would the consequences have been? Karena Vleck, head of the sports group at lawyers Farrer & Co, says that the use of the word "strike" is a misnomer. She compares footballers to highly-paid city bankers, who simply would not strike to secure a 10 per cent pay rise. Their relationship with the FA is not one of an employer and an employee. If they had downed boots it is difficult to see what defence they would have had, says Vleck. They were objecting to a breach of confidentiality surrounding Ferdinand's drug test: at best this might have given them a moral defence, but certainly not a legal one.

Just as well, then, that the players ultimately decided to go to Turkey. But, according to Fraser Reid, of Addleshaw Goddard's sports group, the episode illustrates just how confrontational football politics can be. The players have become so famous that they have extraordinary clout in any negotiations. Arguably, football did not put its house in order at the outset, so that now there are different factions - players, agents, administrators, clubs - all vying for control. Reid contrasts this to rugby union, where despite the shenanigans of November 2000, a de facto collective bargaining agreement (CBA) exists - and where, at the dawn of the professional era, the players' representative, Damian Hopley, did his utmost to harmonise relations between rugby's various bodies.

CBAs are used in many American sports, such as basketball, ice hockey, baseball and American football, and have their origins in trades union law. Put simply, a CBA is an agreement between an employer and a labour union produced through collective bargaining. In the sports context, a CBA will be between the owners (often a federation) and the players. It will outline things such as players' minimum salaries, revenue sharing arrangements and disciplinary practices - in short, the fundamental terms and conditions of the players' employment, as well as the commensurate obligations of the employers/owners. The CBA will set up mechanisms for contract renewals and negotiations, and provide for a standard contract for the players involved.

Advocates of a CBA say it produces success and stability. A CBA exists in Australian cricket and rugby union, both of which are famously successful. But in America, major league baseball has been blighted by strikes as a number of disparate parties periodically play out their internecine strife, with or without a CBA.

Reid says British football may be too set in its ways for a CBA ever to be agreed. It is very hard to see how the various competing interests in football would ever agree. And there is no guarantee that a CBA is a panacea for all a sport's problems. In Norway, despite the existence of a CBA, a strike described by a number of managers as purposeless and unethical took place in June 2002.

Perhaps, when all is said and done, it comes down to attitude. Ian Smith, head of Clarke Willmott's sports department and legal advisor to the Professional Cricketers' Association, says that a much more cooperative model is evolving in cricket, a view endorsed by the PCA's chief executive officer, Richard Bevan. He says we need to understand that the players are not just employees but also the product. "They're stakeholders, the emotional clay that can turn a good sponsorship deal into an excellent one. But problems in a sport need to be solved around the table. This is something we're actively looking at with the England and Wales Cricket Board, so that we can maximise opportunities and keep business partners and sponsors in the game for longer. There is no need for player-power to cause problems. Why does it always have to be a fight?"

Against this, we have Gary Neville comparing the England players' actions to the camaraderie of life at Manchester United: "I have been lucky enough to play for 12 years for a club where, if you are in a tight spot, people would look after you as they would their own family. If that can happen at Manchester United, I would also like to believe it can be the same with England. The players believed Rio had been hung out to dry and we had to show we meant business."

Neville might reflect that life as an employee of Manchester United is not the same as that as an England player. Not in law, at any rate. A new era may yet dawn as football, for once, looks to rugby union. But don't count on it.