Transfer season is upon us. Around this time of year, the back pages of newspapers are rife with a strange sort of speculation whereby grown men openly ponder where other grown men are going to be working next year, what fees are involved and what level of remuneration they may have been offered.
Since players are at once assets and employees of the club, conceptually speaking, there is a murkier aspect to these transactions. Commentators and pundits are less inclined to focus on this side of things because even if some would consider soccer players to be human chattel, the salaries of top players negative whatever sympathy they may otherwise garner in the eyes of most members of the public.
By way of adding context to the discussion that is to come on the contractual standing of soccer players generally, perhaps it is worth discussing just how tough the road to becoming a professional footballer actually is from a purely statistical point of view.
Hit by a meteorite
According to Michael Galvin – whose book, No Hunger in Paradise, shed a light on many of the issues facing lower grade soccer players – the prospects of a young child entering a club’s academy at the age of 9 or 10 making it into the first team are very slim. He claims that of the 1.5m youths playing football at a registered club at any one time in England, only around 180 will make it at the highest level. This gives us a success rate of just 0.012% and as Galvin says, these children are almost as likely to be hit by a meteorite on the way home from training as they are to make it in the Premier League.
Worse still, this is just for kids who are lucky enough to have been born in England with ready access to a network of scouts and development academies designed to feed the bigger clubs. Children from further afield have a tougher road to take. An investigation conducted by FIFPro in July 2015 concluded that human trafficking was rampant in the modern game, with one case of children being effectively abducted from Liberia and brought to Laos, only to be told that they were to sleep in the stadium after training each day and would only be let go home once they had covered the cost of their passage.
It cannot be denied that those at the higher end of the food chain are in receipt of extraordinary amounts of money. Just last month, news broke that Wales international, Aaron Ramsey had signed a pre-contract agreement with Italian side Juventus worth a reported £400k per week. Broken down this works out at a mouth-watering £54,000 a day, £2360 an hour or £39.20 a minute.
Crazier still, this is just half the reported wage of Lionel Messi who earns around £40m per annum. It is important not to be swayed by the reported earnings of the 0.012% of players, as their experiences are not reflective of the other 99.88% who simply do not attain the same level of acclaim. As such, the author believes that it is worth looking at the system of contract law that is applied to soccer players in their dual roles as assets and employees, given that the vast majority of them often toil without reward.
Particulars of player contracts
Let us begin by first defining what a professional soccer player is. According to FIFA: ‘A professional is a player who has a written contract with a club and is paid more for his footballing activity than the expenses he effectively incurs. All other players are considered to be amateurs. It follows that the existence of a written contract is crucial to the existence of a professional relationship’.
Like most employees, soccer players create commercial value which is exploited by their employers – on the pitch, through advertising, jersey sales and so forth. The primary difference between a soccer player and your average employee – aside from the massive differential in wages – is that by and large, they cannot unilaterally choose to end their current contract without paying massive compensation.
In effect, this is what transfer fees are. Clubs are buying the player out of his current engagement. It is worth noting that it is quite difficult to quantify the contractual standing of footballers and there is limited case law available and unfortunately, most of it applies to managers and not players.
The case of Lawrie Sanchez v Barnet Football Club offers insight into the different types of contract that are used by soccer clubs. In this case, the applicant sought to bring an action for unfair dismissal from his role of manager. However, his claim fell down on the fact that for the initial period of his engagement, he had worked as a self-employed independent consultant to the club. On the facts, this meant that he had not seen out the requisite 12 months’ service prior to bringing such a claim.
Therefore, it is fair to say that since there is no uniform contract of employment that is applied across the board to soccer players, we must examine the myriad of unique different terms that have arisen in litigation to better understand the contractual standing of soccer players. Writing in his unique title, Football and the Law, Nick De Marco QC summarises the key terms which are commonly included in the contracts of soccer players.
De Marco identifies ‘express residence clauses’ as being atypical of regular contracts of employment, but common in soccer players’ contracts. In Macari v Celtic, the defendant was entitled to terminate the plaintiff’s contract of employment for failure to comply with a residence requirement which provided that he should not ‘reside at an address which is outwith the radius of 45 miles from George Square, Glasgow’.
There are also early termination payment clauses, which often grab headlines where a manager or player is unceremoniously uprooted mid-contract for poor performance. The most recent example of this of course being brought to light during former Chelsea manager Antonio Conte’s challenge to their decision to withhold compensation following his sacking last summer. He was recently awarded £9m by the Premier League Manager’s Arbitration Tribunal.
Restrictions on leaving
The most worrying aspect of the contractual standing of soccer players is that oftentimes, they cannot simply cut a stay at a particular club short unilaterally – mutual agreement is usually necessary. Therefore, it is fair to say that where there are restrictions on an employee leaving his place of work to take up employment elsewhere, this evokes connotations of slavery.
However, into this void comes FIFA’s Regulations on the Status and Transfer of Players (RSTP). Two of the most important provisions of these internationally binding rules holds that contracts must be respected at all times, and that contracts may also be terminated by either party without consequence where there is just cause for doing so. In the event of termination without just cause, Art 17 RSTP stipulates that compensation is owed and sporting sanctions will follow for the party in breach.
But what is just cause? According to De Marco, just cause will exist where: (i) the breach is so serious that the injured party can no longer, in good faith, be expected to continue the contractual relationship; and (ii) the injured party has given sufficient warning to the other party of its unacceptable conduct.
One example of just cause in practice can be found in the case of Club Samsunspor v Aminu Umar. Here, the club failed to pay the player’s monthly salary on three consecutive occasions and as such, the player had just cause to terminate the contract. This again is evidence that all is not rosy in the football world, particularly when one digs beneath the glittering façade of top tier European football.
Surveying the wider footballing landscape, it is hard not to have concerns over player welfare especially when considered in light of the widespread abuse and corruption uncovered in the Football Leaks saga, the reservations over third-party ownership of players which were expressed by Amnesty International and the allegation that autocratic regimes are using soccer as a means of sportswashing their images in western countries. One would think that considering a human being as a literal asset, kept around to generate income and discarded when not in use, would be antithetical to modern society. Apparently, it is not.
For those interested in the issues raised in this article, Mr De Marco’s book may be purchased here. Please note that this article is for general information only and is not intended to be relied upon as legal advice. Any errors should be notified to the editor and