Football Aid's Legal Eagles on the Transfer Window

It's that time of the year again: football fans continuously clicking refresh on forum websites, managers flying back and forth (negotiating, persuading and influencing like a frenzied US presidential candidate) a doubling of Sky Sports News' viewing figures... the football transfer window is open once more.

At the turn of the century, football's governing bodies set up the transfer window as we see it today - two periods in which players can be traded between clubs - following pressure from the EU Competition Commissioner at the time, Mario Monti, and amid threats to outlaw of transfer fees which were alleged to have primarily contravened EU rules on the free movements of employees across the EU. While the Bosman ruling of 1995 allowed a player to move for free at the end of their contract, the potential implications of the EU proposals could have rendered the sanctity of player contracts obsolete.

A hastily organised meeting involving members of FIFA, UEFA and various leading figures from the world's top leagues put forward a radical overhaul to the transfer system, which has now been codified into the FIFA Regulation for Transfers. While focussing on the liberation of the contracts of younger players (the outlaw of
international transfers of under-18s and payment of 'Training Compensation' to teams losing players below the age of 24), the system also introduced the transfer windows.

By only allowing players to move during two 'windows,' one at the end of a domestic football season, another in the middle of the season, this has resulted in only a very small space of time in which Sir Alex can dip into the Glazer war chest or for Chelsea to make use of their owner's spending power. Following FIFA's decision to bring the rule into compulsory effect during the 2002-2003 season there have been various debates from pubs to directors' boardrooms as to the benefits and shortcomings of the system.

Some of the major opposition to the existence of the transfer window comes from the smaller clubs in football. The big-money sale of a player has always been a saving grace for clubs in the lower divisions when facing difficulties. The £5 million that Nottingham Forest received from Newcastle United for Jermain Jenas in 2002
was rumoured to have kept Forest afloat. Similar sales have helped Sunderland (Kevin Phillips to Southampton, 2003) and, Leeds United (Rio Ferdinand to Manchester United, 2002) in previous seasons.
Do the restrictions placed on player sales put them in unnecessarily precarious positions? Lawrie Sanchez, the ex manager at Fulham, certainly thinks so:

"What has happened is the big clubs have accumulated loads of players so they can get through the window. It stops smaller clubs being able to sell their players when they need to. Whatever reason it was set up for, it has not worked. The new game on the block is name the next manager to get sacked..."

Which he duly was earlier in the year.

One only has to look to at the various big money moves to the top four Premiership sides to see how clubs can spend to their hearts (or owners) content. This, however, is tempered by the fact that it is not possible for a club to splash out on a player after just a few poor results. There is only one point mid-season during which teams
can use money to solve their problems. Nicolas Anelka's move from Bolton to Chelsea shows that the window may not hinder certain clubs with readily available funds. However, it does at least preserve a competitive sporting nature in the game in that at least Chelsea were not able to buy Anelka until this window opened and this barrier has perhaps been a factor in their current league standing behind Manchester United and Arsenal minus Mr Mourinho.

The argument in favour of the restraint of trade of players is founded in the concept of maintenance of the integrity of the competition whereby one team should not be given an unfair advantage (by having more money than anyone else) to buy a player at any time of the season. However, this presents an inherent conflict. There
is little doubt that the premise of the transfer window is evidently a restriction on a player's freedom of movement. Therefore, how can the European Commission justify it? In the case of Lehtonen, concerning the transfer window in the European basketball league, the European Court of Justice accepted there could be good sporting reasons to justify some kinds of economic restrictions - namely the benefits of team stability and 'regularity' of sporting competition.

But can the role of a football player even be compared with that of a 'regular' employee? This is a very distinctive industry where players are, rightly or wrongly, considered as commodities. The EU is eager to categorise sporting industries as "economic activities" and thus bring them within the ambit of EU legislation, although various declarations have been made on an EU level (culminating in a recent White Paper on Sport) acknowledging the 'specificity' of sport and the role it can play as a positive social, community building tool.

As the FootballAid.com transfer window opens in earnest, spare a thought for all the professional players of the 'other' transfer window. Hopefully this article has given you a flavour of the subjects which go to the heart of this controversial matter.

For further information, please feel free to contact Daniel Geey or Mohammed Karim.