Bulletins Story: BOSMAN'S CONTINUING LEGACY - SACKINGS, "TAPPING UP" AND CHELSEA F.C.

Date: 28 April 2005

In the pre Bosman days, a player's registration could be retained for some time after his contract had expired in England until a tribunal fixed the transfer fee. In some countries, the registration could be held for much longer - thus restraining the player's trade for without a current registration, he could not play. This practice gave the clubs some leverage in dealing with their contracted players who wanted to leave at the end of their contract but whom the club wanted to retain.

The Bosman judgment changed all that: clubs, anxious to obtain a "resale" value that was no longer available at the end of a contract responded by putting players on very long contracts. The European Commission did not care for this because clubs could set an exorbitant fee for letting a player go: it therefore tried to give players more rights to move within a contract. Despite this intervention, the transfer system within contract survived because the Commission was persuaded of the need for contractual stability and accepted measures to prevent enticement of a player by a rival club during the contract. Clubs can therefore obtain a fee from a player who moves to another club within a protected period of a contract without a "sporting reason" for the move - e.g. falling out with the coach.

Players are still virtually unsackable as termination of their contract for gross misconduct makes them free agents and a new club can register them without making a transfer payment. This clearly has an adverse consequence on player discipline. Chelsea are currently testing whether provisions introduced in the settlement with the Commission that are designed to deter enticement of a player to walk away, can be used to obtain a transfer fee in circumstances where a player (Mutu) was actually dismissed for misconduct by the club itself i.e. where there was no enticement at all.

The Premier League Tribunal has now passed this hot (and expensive) potato to FIFA. As the provisions relied on by Chelsea were clearly not intended to deal with this situation, a victory for Chelsea will be a real surprise. Should the outcome of the case be that a player indeed can be sacked and the club still get a fee, the players' current security from dismissal will be lost. The outcome on player discipline, however, might be positive.

Another consequence of the Bosman judgment is that the clubs' loss of leverage over their players has increased "tapping up" of players whose contract is coming to an end. Players whose contract is coming to an end (and who could leave for no fee when it ends) are in a strong position to extract an uplift from their current club for an extension. They therefore have every reason to listen to siren voices seeking to lure them away.

"Tapping up" is of course prohibited in English soccer (and Rugby Union worldwide) though not all countries follow English soccer's example - perhaps because it is very difficult to legislate against something that is treated as normal in most walks of life. There is a genuine sporting justification for prohibiting "tapping up" in sport. Sport is a collective activity financed by the paying public and it can diminish the integrity of the spectacle if a player's loyalties are divided as a result of an approach from the club that he finds attractive but which he is currently paid to help defeat on the field of play. The reported attempt to characterise the prohibition as a restraint of trade on the player (as opposed to the agent) therefore ought to fail: even if it is a restraint, then it is a reasonable one.

"Tapping up" also has another aspect: even if it is unsuccessful in enticing a player, it usually has the effect of raising the costs of a rival club who succeeds in keeping the player. As all clubs ultimately suffer from this process, (save perhaps those whose financial resources are unlimited) what can be done to stop it? In a totally different field (the City Takeover Code) the "put up or shut up" rule requires a predator to state publicly whether he will bid for the whole of a company. If he says he won't, he is held to his election and cannot bid for a significant period of time.

Football could introduce a rule which provided that once a "tapping" club denied any interest in a player currently under contract to another club, such a player could not be registered with the "tapper" for say twelve months or two transfer windows. The effect of such a rule would be that a club would be encouraged to make a direct and legitimate approach to the player's current employer for if the illicit approach to the player is found out (by paparazzi ambush for example) the club has to either go through with the transfer (and face the disciplinary consequences) or rule itself out for a while.

A rule of this nature might help clubs stop bidding up the wages bill of their rivals. As to restraint of trade, there would appear to be none as at the end of his contract, the player would only be stopped from going to the "tapping" club and could go elsewhere. Moreover he could then join the "tapper" after a cooling off period

Sport needs to start thinking about improving its rules here or abandon them as they are clearly not working. Whatever path it takes, the current off the field legal challenges of Chelsea demonstrate that the legal legacy of Bosman still has to work its way though.

Stephen Hornsby
253

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