First off, thanks to Geoff for initiating this matter for discussion.
Naturally, many of us here would have a blast taking up a case for FIFPro and any affected players in view of EC Treaty Arts 81, 82 et seq and in essence challenging the collusion such an agreement would create, but I don’t feel we even have to entertain such a discussion…
Quick points merely herein:
– Under “Ein Kommen und Gehen” (hat tip to Manuel Martín Domínguez for the link below), Hoeneß argues that he fears a developing scenario that would assimilate American football and basketball leagues and questions “where are the 49ers and the Bulls”… He argues that in this way (Webster decision, freedom to breach a contract and only owe the remaining value of the contract) you can’t build traditions and develop teams…
As a former coach I understand what he’s saying. However, let’s think about this for a moment…
On this side of the Atlantic, our US friends have developed a system where contracts are mostly enforced by the sheer magnitude of the liquidated damages clauses, that some courts would even go as far as render punitive and even unenforceable. Some of our colleagues here, especially after some high-profile coaches’ breaches this year, argue that there should even be a specific performance clause/enforcement avenue, and also somewhere in this maelstrom there is a fascinating discussion on whether a bonus clause for completing the contract encourages coaches to remain with their team… Indeed, such an American concept to be awarded for doing what you are supposed to!
Hoeneß says that it is not a healthy situation that corrupts football and Horst Held of Stuttgart argued that the CAS Panel that decided Webster “had no idea…”
It is also interesting in the article to point out that it is argued the new broad European Club Association (ECA) is not in the position of power that the G14 was as the instrument for enforcing contracts etc… People seem to not truly trust the ECA… Heterogeneity issues, conflicts within? I’d love to hear more if anyone has info on the current state of the ECA, in view of the EC’s social dialogue efforts…
– My Q is, are liquidated damages under — in this case — German Law and others please chime in from your jurisdiction (a nice comparative piece I believe from us to that end would be forthcoming) illegal? If Labor Law/Employment policy provisions allow for a “US-type” buyout clause, then is there a problem negotiating that with the player’s representatives? It is just part of the business, correct?
(It follows, do you see the US bonus clause for completing the contract working…?)
– Otherwise, Hoeneß still remains practical mentioning that such a Gentleman’s agreement would be “more than questionable” considering the “Russian oligarchs (why do people criticize Russian money anyway, wouldn’t they go for it?) and other big-time investors”…
– The problem as we see it nowadays occurs in such recent cases as many in Europe and specifically in Greece where I have the examples from, where a team (Aris Thessaloniki) that wishes (coming very close this past season) to break the monopoly of the big-time investors and traditional (Athens) football regimes (I wonder if Hoeneß would think that would make good football tradition…) is in a tough situation: A very talented player (Papadopoulos) and the best coach in its history (Bajevic) are being courted by the haves of Athens… Bajevic seemingly turns Panathinaikos down, BUT:
the talented player’s contract is about to expire this upcoming season… Does the team lose him for nothing, sell for as much as they can get, or talk him into renewing for a reasonable price? The latter was not an option, as repeated attempts were turned down by the player’s representative, since logically they felt they would get more in the free market. But what if the team would then hurt the player’s stock value (as the CAS Panel in Webster hypothesized… should they be liable for the negative value?) Aris administrators allegedly told Bajevic he shouldn’t count on the player for the upcoming season… Then coach resigns, and the player is eventually sold to Olympiakos for 2.5 million Euros, whereas the administration had posed they wouldn’t give in for less than 4 mil… But do they risk losing him for nothing, as many examples of failed negotiations show…? According to Webster obviously, Avraam Papadopoulos could breach (unsure if he was outside the Protected Period) and merely owe the remaining value of the (minute considering his present value) contract…
Thus: buyout clauses?
bonus clauses for completing the contract? (…I cringe still, though I see the American point of practicality)
tapping up sanctions and practicality of enforcement?
(somewhat laughing) specific performance enforcement…:)
In strict legal sense, I believe the Webster decision was correctly decided, and the two Greek cents in our recent Newsletter point out some truly captivating sections of the decision, making for some really good theorizing…
Otherwise, another tough example of fragmentation of EU Law and Policy, with conflicting interests and rationale…
Would love to hear your thoughts
Geoff and Manuel thanks again for this…
On Wed, Jul 9, 2008 at 12:30 PM, M. J. Martín Domínguez wrote:
I think this is the publication you are looking for. It is German and I have not found any reference in other languages.
De: Sport and the European Union En nombre de Pearson, Geoff
Enviado el: miércoles, 09 de julio de 2008 17:20
Asunto: Webster Decision – Gentleman’s Agreement?
A quick query regarding the Webster decision.
I have been informed that in a recent German football magazine, Bayern Munich manager Uli Hoeness stated that there was a Gentleman’s Agreement between clubs in the ‘Big 4′ European Leagues not to utilise the Webster Decision in order to reduce transfer fees for players who are out of their Protected Period. However, I’ve not seen the interview myself (and I can’t read German in any case!) and I have not found any reference to this elsewhere.
Does anyone know any more about this alleged agreement?
Thanks in advance.
Dr Geoff Pearson
Director of Studies (MBA Football Industries) Lecturer in Law Management School University of Liverpool Liverpool L69 7ZH
Sport&EU, The Association for the Study of Sport and the European Union can be found at http://www.sportandeu.com