Soccer Players Transfer Saga

Soccer Players's Transfer Saga And Fate Of Nigerian Football: A Cursory Look At The Laws Of The Game.

By Ezeaku Amobi Esq. LLB. (NIG) (BL)

“The illiterate of the 21st century will not be those who cannot read and write, but those who cannot learn, unlearn and relearn”. Alvin Toffler.

Dear friends, this is the first piece I am letting out after hanging my boot to face the game not as a direct football player but now as a writer on matters relating to the beautiful game and also as a lawyer whose major interest is on this game –
Football. Indeed I feel so delighted to be back to the fold after my last “Open Letter to Mr. Stephen Keshi” on the 28th day of December 2013 just few days before the CHAN tournament in Madiba’s land in the early days of 2014.

Donal McCarthy in his piece Man and Ball published on the 6th day of August, 2014 opined that the attachment of the “word” saga to protracted football transfers is an odd twist of language. To him, the word’s origin is in ancient tales from Northern Europe of mortal heroes struggling against the elements, the enemy and the odds to become “worthy men”. The settings and plots can vary but one constant remains; the central character is always relatable, human, one of us.

The writer intends to look at the legal framework on player’s transfer while also dimming the headlight on the central character, human, when the juicy tale of transfers commence.

We shall set sail by defining useful terms such as “club” and “player”.

The FIFA Statute 2014 defines a “club” as a member of an Association (that is a member of FIFA) or of a league recognized by an Association that enters at least one team in a competition. The same Statute defines a “player” as any football player licensed by an Association. Article 2 (1) of the FIFA Regulations on the Status and Transfer of Players states however that “players participating in organized football are either amateur or professionals”. By Article 2 (2) of the Regulation “a professional is a player who has a written contract with a club and is paid more for his footballing activity than the expenses he effectively incurs. All other players are considered to be amateurs”.

The Laws governing the game of Football establish set codes and conducts as well as the objectives of FIFA.

Article 2 ( e ) of the FIFA Statute states that the objectives of FIFA amongst others is to promote integrity, ethics and fair-play with a view to preventing all methods or practices, such as corruption, doping or match manipulation, which might jeopardize the integrity of matches, competitions, players, officials and members or give rise to abuse of Association Football.

By the foregoing Article it is clear that integrity, ethics and fair-play are fundamental attributes which must be present at all material times towards the enhancement and promotion of the beautiful game. Little wonder the world’s football governing body frowns seriously at any act that tends to demean its integrity.

The game of football in the world and in Nigeria especially is under increasing threat from transfer brouhahas, the effects of which reverberate nationally, regionally and globally. Crucially for FIFA the threat which this brings along is damaging the integrity and credibility of football at various levels. This should not be so if all parties involved in the transfer of a player or players take into consideration the damaging effect of the bad and sharp practices employed to facilitate to their advantage the transfer of such a player or players.

Interestingly, the introduction of the ultimate source of information, FIFA Transfer Matching System (TMS) on the football transfer market becomes handy. With the TMS in place, FIFA works to increase transparency and integrity within the football community and enforces the FIFA Regulations on the Status and Transfer of Players. The TMS is a web-based regulatory system used by all two hundred and nine Member Associations and over six thousand football clubs to manage international transfers of professional male footballers within the scope of eleven-a-side football. This system enables users to gain a complete picture of domestic transfers, communicate more efficiently with each other to speed up the approval process and store official documents safely for easy referral and increased adherence to their own domestic regulations. The usage of the TMS is open to clubs and it is therefore believed that in the exercise of due diligence by clubs, some scandalous player’s transfer sagas could be averted.

The FIFA Statute provides clearly in its Article (5) that the Executive Committee shall regulate the status of players and the provisions for their transfers as well as questions relating to these matters, in particular the encouragement of player training by Clubs and the protection of representative teams in special regulations.

Article (5) therefore empowers the Executive Committee which is the executive body of FIFA to look into the status of players and the provisions for their transfer. In other words, the powers of the Executive Committee on the issue of transfer and matters related thereto are non-restrictive. How far and well the Executive Committee has gone and done under this Article is felt mostly in Europe as transfer matters in Africa and Nigeria in particular delve into dramatic twists. It is humbly solicited that the searchlight of the Executive Committee on this very fundamental football issue should be evenly positioned to ensure a stable player’s transfer regime.

Article 54 of the FIFA Statute 2014 establishes the Players’ Status Committee. Accordingly, the Players’ Status Committee shall set up and monitor compliance with the Regulations on the Status and Transfer of Players and determine the status of players for various FA competitions. Its powers of jurisdiction are governed by the Regulations on the Status and Transfer of Players. From the foregoing provisions it is seen that the Players’ Status Committee of the Football Federation is mandated to monitor compliance with the regulations relating to players’ transfer. The extent of the exercise of the committee’s role and its success could be judged by the drastic reduction or a zero level tolerance of any transfer moves that would drag into muddy waters the name of the beautiful game.

The FIFA Regulations on the Status and Transfer of Players is wide in scope because of the very important role player’s transfer plays towards the advancement and enjoyment of the game.

Article 1 (1) of the Regulation states: “these regulations lay down global and binding rules concerning the status of players, their eligibility to participate in organized football, and their transfer between clubs belonging to different associations”.

The foregoing provisions of Article 1 (1) of the Regulations on the Status and Transfer of Players is a pointer to the worldwide acceptability of player’s transfer but the binding effects which the Regulations lay down concerning the status, transfer and related matters attract more emphasis. Players, agents and football clubs are therefore bound by the provisions and scope of the Regulations when the all time juicy ball of transfer is set in motion. This explains why there are sanctions for any breach from the parties involved.

It’s a well known principle that at all times contracts must be respected. Now, what happens where a player signs two professional contracts knowingly? Example: player A goes to England, signs a contract as a player of B and C Football Club. The player again having knowledge of the existing contract with an English club travels again to Libya to sign another deal as a player of D and E Club which turns out to be the player’s actual club. Now it becomes very difficult to ascertain how the sanctity of such contracts could be protected.

Article 1 (3) (b) of the Regulation on the Status and Transfer of Players provide “each association shall include in its regulation appropriate means to protect contractual stability, paying due respect to mandatory national law and collective bargaining agreements. In particular, the following principles must be considered… the principle that contracts must be respected”.

The principle of pacta sunt servanda in all its form is what the above provision enunciates. The principle which in a nutshell means that agreement must be kept is a basic principle of international law as well as civil law. In its most common sense, the principle refers to private contracts, stressing that contained clauses are law between the parties, and implies that non-fulfillment of respective obligations is a breach of the pact. In other words, all the parties involved in the transfer of a player are bound by the contract and must perform such in good faith.

It is to be borne in mind that whenever issues arise with respect to the transfer of players especially players of Nigerian descent its effect on the integrity of the Nigerian Football Federation is always massive and its better not imagined where and when such transfers go soar.

The player at all times is bound to be truthful with regards to the true position and status of his club, license and clearance as the case maybe to ensure we nip in the bud the incessant problems arising during transfers.

Due diligence must also be exercised by the club intending to conclude the contract with the player.

Article 18 (3) of the Regulation aptly provides that “a club intending to conclude a contract with a professional must inform the player’s current club in writing before entering into negotiations with him. A professional shall only be free to conclude a contract with another club if his contract with his present club has expired or is due to expire within six months. Any breach of this provision shall be subject to appropriate sanctions”.

Just the same way one would get a report from a surveyor or estate manager as a matter of course when buying an apartment, it is the writer’s thought that Football Clubs intending to lure a player to its side should exercise due diligence. With the recent happenings especially around the African football coasts, it seems that due diligence is going out of fashion.

On the issue of due diligence David Paton, the Managing Director of Kinross Sports Advisory, a British firm that provides advisory services to sports clubs and sports governing bodies across the United Kingdom and the United States had this to say: “if you were to buy a house then you would do a land registry search, a local authority search, you would have a home buyer’s report, you would understand the asset that you are buying as much as possible… that is the same if you are buying a company; there would be financial due diligence undertaken so that you knew of any underlying problems with the business before you bought the asset. What was very clear was that clubs were not doing that in the transfer market”

Conclusively, it is glaringly clear therefore that due diligence is taking the back seat in the transfer market. We call on the necessary parties – clubs, agents and indeed all football lovers who could be affected by the turbulence in the transfer market to exercise due diligence when this all important issue crops up. We also charge football players who are the central character in the arena to at all times exert genuine reflection of integrity and honesty when involved in transfers. We also applaud the Nigerian Football Federation and the machineries set in motion towards ensuring that transfers involving its players and clubs do not cause commotions and indeed commend the swift and transparent investigative approach she adopts in such cases taking into consideration the provisions of the FIFA Laws. The media should also be proactive and professional in tackling issues related to transfers. Indeed, the press must dust her goggles while on the look and sanctify with the water and ink of honesty her pens.

Ezeaku Amobi is a Nigerian lawyer, writer, footballer whose major interest is the protection of the rights of sports men and women.