Football: Transfer system under threat

Legal view of fixed-term contracts could change the face of football. By Nick Harris and Robert Verkaik
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The Independent Online
EXPERTS WERE divided yesterday over the legality of football's transfer system and the power that individual players yield in deciding which club to play for and how long.

"The Nicolas Anelka case could mark the beginning of the end of the transfer fee," Andrew Caiger, a senior lecturer in competition and sports law said, referring to Arsenal's French striker and his attempt be allowed to leave the north London club.

Anelka has made it clear that he wants to join Lazio in Italy, but Arsenal do not want the player to leave and have failed to agree a price. Anelka, assisted by the Belgian lawyer Jean-Louis Dupont (who acted for Jean-Marc Bosman) is now considering legal action that could allow him to break his contract with the Gunners at two months' notice if he pays the club compensation.

"No court is going to insist that Anelka has to play for Arsenal," Caiger said. "They may insist that he finishes a contract, but for all practical purposes, it would be more likely that a compensation fee is agreed.

"If Anelka pays pounds 900,000 [a figure Dupont is understood to reckon as adequate compensation] and pushes off to Italy, he would probably be a Lazio player within six months." Caiger added that Arsenal might sue Anelka for breach of contract, but they would eventually realise that the player cannot be forced to play for them and his registration would be transferred to his new club. Rather than let such a situation unfold, Caiger expects Arsenal to agree a fee for Anelka, probably not too far off their pounds 20m valuation, within the next week. Not all legal opinion is in agreement.

According to Richard Cramer, a partner with the Leeds law firm McCormicks, Dupont's argument that Anelka could buy his way out of his contract would not stand up in an English or Continental court. He said that both European and English law recognised fixed-term contracts. Cramer added that footballers are subject to fixed-term contracts which do not allow them to serve notice before the contract is completed.

"I think this is a lot of hot air, if Anelka breached the contract without Arsenal's agreement then the club could sue him for millions of pounds worth of damages." He added that if Anelka did succeed, it would "make a mockery" of the transfer system. The international system of in-contract transfers is based on fees being paid to clubs as a kind of compensation for allowing the player to break his contract.

Outside football, fixed-term contracts are commonly enforced by the courts. Restrictive covenants prevent employees who leave a business from joining competitor companies for a fixed time.

The Anelka case highlights a delicate area of sports law. According to Caiger, transfer fees are an anachronism akin to slavery, and if a club ever tried to demand a fee in court as a prerequisite for a player being allowed to leave, the case would be thrown out and the player would be allowed to move, even if some form of compensation were payable. "Any form of transfer fee is contrary to European law," Caiger said. If and when a case comes to court, a precedent would be set that could see the end of transfer fees, he added.

Gordon Taylor, the chief executive of the Professional Footballers' Association, said yesterday that football will be the loser if Anelka goes to court and wins the right to leave Arsenal. "The view of the European Commission is that all players should be treated the same as any other worker.

"I've never considered that to be the case in professional sport because of the need to be able to have a long-term planning policy with young players and stability to stop supporters getting disenchanted."

Compensation fees could be written into players' contracts, Taylor said, to clarify matters when a contract is broken unilaterally. In Spain, contracts already routinely contain clauses which state a certain amount must be paid if one of the parties breaks the contract. A similar clause allowed Ronaldo to leave Barcelona for Internazionale of Milan for pounds 18m.

Taylor, however, is worried for his own members because the other side of the same coin means clubs can tear up a player's contract if he is injured or out of form. If Anelka is able to walk away by giving two months' notice, Liverpool's Gerard Houllier, for example, could make Paul Ince redundant at two months' notice because he is no longer part of his plans at Liverpool.

"The player will automatically want compensation for the rest of his contract," Taylor said. "If a figure can't be agreed, the court is going to be littered with football cases."