The contracting of football players
Under current FIFA Regulations, a player is owned by the club who holds their registration. All players who play for clubs in the Football Association Premier League in England will be registered with that particular club and, while they are still under contract, will only be able to move to another club following the payment of a transfer fee.
Player power increased following the European Court of Justice’s ruling in the Bosman case in which it was held that a player was free to leave his club as soon as his contract expired without the requirement of a transfer fee. FIFA updated its transfer rules following the < a href="/football-law/bosman-decision-football-transfers/">Bosman ruling, and under Article 13, a contract between a professional and a club may only be terminated upon expiry of the term of the contract or by mutual agreement.
Strict rules on approaching players who are still under contract (tapping up) still, however, apply.
Currently, under FIFA and FA transfer rules, if a club wants to procure the services of a player registered with another club, they must speak directly with that club and not to the player or his representatives. The player and his representatives will only be brought in for discussions with the potential purchasing club once the two clubs have agreed a fee.
Often a club wishing to buy a player from another club will contact the player directly to try and persuade him to join them should a bidding war for that player ensue. Also, if the club wishing to sign the player feels his current club would be unwilling to sell, they may contact the player to unsettle him at his current club and thus persuade him to hand in a transfer request.
The footballer’s representatives are likely to have a big involvement in setting up a meeting between the club and his player. The player’s agent will be the first port of call for the club wishing to gain the services of the player and often it is the agent which makes the first contact with potential clubs touting the services of the player he represents.
Article 22 of the FIFA Players’ Agents Regulations prohibits a player’s agent from approaching any player who is under contract to a club with the aim of persuading him to terminate his contract prematurely or to violate any obligations stipulated in the employment contract. It shall be presumed, unless established to the contrary, that any players’ agent involved in a contractual breach committed by the player without just cause has induced such breach of contract.
Section C1 of the FA rules, meanwhile, prohibits a player who is under contract, or his agent, from talking to other clubs, or being approached by other clubs, without the consent of the player’s current club.
Despite the rules, tapping up still happens as clubs strive to improve their standing, footballers look to improve their pay packets and profiles and agents are always eager to pocket the hefty percentage a new deal can bring them. Approaches will often be made when a player is away from his club on international duty or via clandestine meetings out of the public eye.
If tapping up is discovered, punishments may be handed down by those involved in the meeting, including to the:
- club tapping up the player;
- manager of the club tapping up the player;
- agent of the player.
In a high profile case in 2005 involving Arsenal defender Ashley Cole who, with his agent, illicitly met representatives of Chelsea FC, the sanctions imposed were:
- a fine and a suspended three-point deduction for the club;
- a fine for the manager;
- a fine for the player;
- a fine and a suspension of the licence for the agent.
Restraint of trade?
Many may feel that the ruling is disproportionately restrictive on the activity of agents and out of line with the notion of players seeking alternative employment and clubs seeking new employees. However, restraint of trade rule will allow the validity and enforceability of a restriction if the restriction is reasonable and necessary to protect a proprietary interest.