The below questions and answers were first published on the Secret Footballer website here.
Are sports lawyers heavily involved in the transfer window?
As deals get more complex, more valuable and with a variety of parties involved, many clubs believe it is imperative to have legal input. This may be in relation to assisting the drafting of the transfer agreement, the employment contract, the image rights deal and other associated documentation.
The administrative burden in requiring international clearance from Fifa, registering the player with the Football Association and the Premier League/Football League is also a major part of a transfer. Simply put: if a company is spending millions of pounds on a particular asset, it is clear that lawyers should be ensuring the transaction is in the best interests of their client and drafted accordingly.
Clubs are investing significant sums in player acquisitions and, as such, are using specialist sports lawyers more often to secure the best deal possible. Lawyers can be acting for a number of potential parties in a deal. Usually, for high-value deals, the selling club, the buying club, the player’s agent and any third-party economic owners may all have separate lawyers. That is in addition to lawyers and administrators at, for example, Fifa, the FA, Premier League and/or Football League who will be involved through to the conclusion of the deal.
Are agents unfairly criticised by the media and fans?
From the public’s perspective, being an agent appears to be a glamorous, high profile and highly lucrative profession. Agents are viewed as the party driving transfer prices and wages up or down, depending on their client’s priorities. There are plenty of extremely hard-working agents, who are paid very well and do a fantastic job for their clients – club or player.
They are highly trained negotiators, impressive networkers and provide connections to clubs across the globe that sometimes do not have the reach to make a deal happen. Granted, not all agents are as savvy as the next. But fans and the wider public usually see only the externally projected view of agents – ie. the view that an agent can make a call, set up a meeting and then pocket significant commission. Such circumstances, in my experience, do not happen very often.
They can be willingly used as scapegoats for a selling club that wants to drive a hard bargain for their star player while, conversely, also helping a club to sell a player that it wants to move on.Clubs need good agents for selling and buying players and almost all clubs realise this. They build up relationships with trusted agents so that deals can be pushed through when they need to happen.
How complex are some multimillion-pound deals?
There are different phases of a transfer that can make things more complicated or straightforward. There can be occasions when different agents claim to be representing the same player. Finding the person with the authority to act for the player can be tricky on occasions. Similarly, a transfer can take place only with a willing seller.
A buying club should not be liaising with the particular targeted player until it has the permission of the selling club. This is usually granted once outline transfer terms have been agreed between seller and buyer, though sometimes a seller may themselves have investors – third-party funds – to deal with.This can make liaising between the clubs, agents and investors complicated.
It means that multilateral transfer fee, employment contract, image right and third-party investment fund negotiations can all be taking place over days and weeks to find satisfactory solutions. That doesn’t even include, where necessary, Fifa and national association administrative tasks like international transfer certificates, medicals and work-permit applications. It would be fair to say that large transfers involving foreign players into the Premier League, who have third-party economic rights, require plenty of work. Club in-house counsel – and external lawyers – for the larger Premier League clubs are increasingly experienced at negotiating and concluding such deals.
Why do some deals take until the last day of the transfer window to complete?
Transfers can become a game of bluff and double bluff. One transfer can set off a chain reaction. By way of very basic example, if “Club A” has a choice of two players and is negotiating hard to get the best deal, such a negotiation and transfer may take until the last few days of the window. Once the club goes ahead with the deal, the agent of the player that Club A decided against buying may have been negotiating with several other clubs and one of those clubs may now try to complete the transfer.
If Club A’s transfer is going through, another player in Club A’s squad may not play as much and may be told to find a new club in the closing days of the window. The transfer positions of various clubs if a club buys or does not buy, waits and negotiates on a particular deal or pulls out of a transfer, can all have knock-on consequences for other directly or indirectly linked transfers.
The arrival of transfer deadline day focuses minds.I can understand how it may seem strange that clubs leave major investment decisions to the very last minute – and sometimes that is the case. It should be stressed, however, that even transfers done on deadline day may have been the culmination of weeks or even months of planning even though, to the outside world, such a deal may appear to be a “panic buy”.
Should transfer windows be abolished? What are the pros and cons?
The transfer window restricts the ability of a contracted player to move. That is certainly not in question. The justification for the transfer window is primarily that season and team stability can be a legitimate justification for restricting a player’s ability to move clubs.
The European Court of Justice, in relation to the questioning of the legality of a basketball transfer window, explained that valid sporting reasons in relation to team stability and the regularity of a sporting season could justify restrictions. Specifically, late transfers in a season could substantively change the sporting strength of one team over another, which could distort the proper functioning of a full league season.
These types of justifications are key to understanding why the transfer window is in place. It means that clubs cannot buy players with a few games of a season to go – from a team that has nothing to play for – if they are trying to win the league, qualify for the Champions League or avoid relegation. Such justification has to be balanced against the mobility of football players to transfer at limited periods of the footballing calendar.
FIFPro, the global players’ union, is reported to be challenging the Fifa transfer system, which no doubt includes the imposition of such windows. At present, however, no court has ruled the transfer window illegal in its current form.