Too big for their boots

The latest tactics used by David Ginola have sparked outrage from fans and another debate on footballers' rights under European law. Jon Robins asks: has player power gone too far?

There was a somewhat muted response to David Ginola running on to the pitch at White Hart Lane in the match against Tottenham Hotspur (Spurs) last month. Not from the home fans, you must understand, who cheered Ginola's visit to his former club, but from the fans of his present club, Aston Villa. On this occasion, the fans' disaffection had nothing to do with Ginola's performance on the field and everything to do with some nifty off-the-pitch footwork which saw the winger instruct Cherie Booth QC of Matrix Chambers in a possible legal action against his boss, Aston Villa manager John Gregory. Ginola called in the lawyers following a number of comments made by Gregory expressing concern about the player's weight, including the less-than-charitable observation that he was “carrying a bit of timber”. While such a comment seems positively polite compared with the abuse frequently thrown at players from the terraces, it might just be enough to give the 34-year-old football player the leverage to escape his contract, if that is really what he wants; or, more likely, it could allow him to flex his muscles a little. According to Gordon Taylor, chief executive of the Professional Footballers' Association, Ginola was “at the end of his tether” as a result of such barbs. “In any other job, it would be seen as harassment,” added Taylor.
Most sports lawyers are sceptical about the merits of any action and dismiss it as part of the media show that many players' agents play leading roles in. “It's all part of the tactical positioning off the pitch,” says Jonathan Metliss, head of the sport business group at SJ Berwin. “It's probably just a good newspaper story.”
“It's almost certainly a story that's been planted by his agent to stir up trouble,” comments Simon Jeffreys, an employment partner at CMS Cameron McKenna. He points out that football players negotiate through their agents and not their lawyers. He also cites a number of high-profile disputes between players and their clubs, such as the acrimonious departure of Nicholas Anelka from Arsenal a few years ago, or his former clubmate Patrick Vieira, to whom outspoken comments concerning his desire to walk out on his contract with the North London team have been attributed. In neither case, says Jeffreys, did the player called upon the services of a lawyer.
Nevertheless, there has been much speculation on the back pages of the press as to what course of action Ginola's lawyers had been discussing with the Prime Minister's wife. The most obvious claim would be for constructive dismissal, which would enable the player to escape the club as well as to claim damages for unfair and wrongful dismissal. Others flag up a defamation action. Some commentators believe that the timing – immediately before the introduction of Fifa's new transfer regulations – is no coincidence, and reckon that Ginola could be the first player to argue his way out of a contract under the new rules.

“The manager is trying to put out his best 11 players every week, and so they can hardly argue that they are a star and entitled to play”
Fraser Reid, Theodore Goddard

Football lawyers see Ginola's keenness to take legal advice as symptomatic of a new assertiveness from players. “It's a good example of the way that football players are turning to employment law in much the same way as other employees and in the way that historically they've never done before,” says Aston Villa fan Martin Palmer, a senior associate in Allen & Overy's employment group who advises a different Premiership football club. That aside, his view is that the talk of legal action probably only amounts to “tactical posturing”.
According to Peter McCormick, senior partner at Leeds firm McCormicks and an associate director at Leeds United, it is “indicative of the shift in power in the game that a player today even seems able to contemplate instructing lawyers to pursue such a matter. Undoubtedly, 10 years ago a player wouldn't even have thought of it.”
So, what are the merits of the case? “I'd have to see a photo of Ginola in his shorts,” replies McCormick. He adds that a manager has the responsibility for the fitness of his players and should be able to encourage them either through a “motivational or a critical” remark.
Gregory's comments are “controversial and lacking in diplomacy”, says Belinda Avery, who co-heads Pritchard Englefield's employment group, which acts for South-ampton Football Club. But she doubts whether they add up to a strong claim.
For a successful breach of contract claim, the player would have to demonstrate that Gregory has acted in such a way “as to undermine the relationship of trust and confidence” between employer and employee. If there has been such a breach, the player could resign and claim constructive dismissal.
But, as Avery points out, the allegations about the player's weight date back to December, and such a lapse in time weakens the case, even though a claim can be brought six years after a breach. The lawyer also contends that a player should explore all internal remedies before going to the tribunal. Avery represented Southampton when former manager David Jones brought an action contending breach of contract when the club suspended him on full pay pending an inquiry into allegations of child abuse. That case, in which the club was ultimately vindicated, underlined the need for strong internal grievance procedures, she argues.
Many football bosses (and their lawyers) would argue that the normal employment rules do not sit comfortably with the practice of football clubs. “It's not your average employment,” says Fraser Reid, an associate specialising in sports law in Theodore Goddard's entertainment department. “It's a team sport and the management has the right to put out the best team, even if that means leaving the star out.” He questions, for example, what a tribunal might make of a manager's team selection policy. Last season Ginola started only 14 games. According to Reid, such a situation does not compare with an employee who is passed over for promotion or not provided with a steady flow of work. “It's a much more difficult environment in which to make a case,” he says. “Obviously, the manager is trying to put out his best 11 players every week, and so they can hardly argue that they're a star and entitled to play.”
There have been no high-profile cases involving players of Ginola's stature to test, for example, overly restrictive contracts or team selection policies. One sports lawyer points out that it is not difficult to see the “potential for embarrassment” if a tribunal were to take a close look at the internal workings of a club. He flags up the case in professional rugby of Junior Tonu'u, who is suing London Irish. The New Zealand scrum half was signed up for a two-year contract last March, only to be told earlier this year that he would not be playing. A tribunal is expected to hear his case next month.
“For the first time, supporters of professional rugby will get an insight into what happens behind closed doors and the relationship between the players, the coach and the board,” says Reid. “From the club's point of view, it's fairly obvious that they don't embrace employment law.”
From the point of view of the clubs, the Ginola story is evidence that the balance of power between player and team has tipped towards the stars. The chief executive of the League Managers Association John Barnwell went so far as to dismiss the legal threat as preposterous. “It confirms that players are getting totally out of their station,” he told the press.
It was the landmark Bosman ruling that kickstarted a new era in the relationship between the top players and their clubs. In that case Belgian football player Jean-Marc Bosman took his club to the European Court of Justice after he was blocked from moving to another club in France because it was not going to receive a transfer fee. He argued successfully that players were “workers”, and as such they were consequently entitled to the benefit of European Commission (EC) treaty rules which guarantee workers the freedom to work.
With less money being spent on fees and more available for the stars, the Bosman decision has led to huge increases in players' wages. Clubs complain that it has also played havoc with Premiership team-building, as managers are under the constant threat of losing top players. The former Spurs captain Sol Campbell recently ended 12 months of uncertainty by controversially crossing North London to sign for Arsenal. Many Spurs supporters were livid that the defender joined their arch rivals on a free Bosman transfer after his contract had expired earlier in the year.
Peter McCormick sits on the Premier League's legal working party and advises all 20 clubs on such issues. He complains that the money is “flowing out of the game” and into the pockets of the players as a result of the legacy of Bosman. The lawyer points to last month's research by analysts Deloitte & Touche into the economics of football, which revealed that Premiership clubs were spending on average 66 per cent or more of their turnover on wages. “There is no other business on the planet I can think of where that is sustainable,” he warns.
As the season kicked off, McCormick attended a Premiership meeting in which there was much concern about the working of the new FIFA regulations on international transfers. In March this year FIFA, UEFA and the EC finally agreed upon a formula for a new international transfer system.
McCormick sees the new rules as once again shifting the bargaining power back in favour of the players. “My anxiety is that the FIFA rules have been brought in to appease the EC, and so they're a compromise to begin with,” he says. “Such crucial aspects have been so vaguely formulated that they're a recipe for potential litigation, and rather than solving problems they will create them.”
Under the new system, all contracts will be for a minimum of one year and a maximum of five. Contracts will have a protected period of three years, during which they cannot be unilaterally broken without sanctions. This period is reduced to two years for players aged over 28, and for those under 23 a system of compensation will be put into place to protect clubs. FIFA will also introduce a proposal of 'sporting just cause', which will enable players to break their contracts during the protected period if given permission by a new international arbitration tribunal.
It has been reported that Ginola could be the first player to seek release from his contract on the grounds of sporting just cause. Although the rules apply only to international transfers, it is believed that they will also affect domestic rules.
Josh Smith of Charles Russell's sports group argues that the mentality of players is changing; they now want contracts that are less restrictive and they are prepared to employ teams of agents, lawyers and accountants to look for loopholes in those contracts. According to Smith, one possible example of sporting just cause has been defined as a player who is involved in less than 10 per cent of the first team's appearances, or a player who has not been paid. But he adds: “One wouldn't want to overstate the effect of these rules, because if you look back to five years ago, everyone was saying that Bosman was going to mark the end of the transfer system.”
But for McCormick, the new rules represent a pendulum swing too far towards the players. “I'd like the bargaining power to be equal again,” he says. “Clubs don't want to treat players as if they were chattels, like they did in the 1950s before the minimum wage was abolished, but if the bargaining power was 50-50, that would be fine.”

Bosman and beyond
The new FIFA rules on international transfers, which come into effect this month, represent an uneasy balance between the freedom of movement of players as workers under European Commission (EC) Treaty rules and the need of the clubs to retain and grow their own talent.

Michel Stuys, an associate lawyer in Allen & Overy's (A&O) sports group, which is based in Brussels, argues that FIFA has no guarantee that its new rules will survive a legal challenge. “The European Commission can give the green light from a competition law standpoint, but it has no powers to say the rules are perfect under the requirement for the free movement of workers.”

Stuys joined A&O a year ago after seven years at the European Court of Justice (ECJ). While at the ECJ, he worked on the Bosman case. Belgian player Jean-Marc Bosman took his football club to the ECJ after he was blocked from moving to another club, that extended the EC rules on free movement of workers to football.

The European footballers' union FIFPro has already threatened to apply for an injunction in Belgium against the regulations, although it announced that it intends to hold its fire to see the effects of the new system in action. According to Stuys, if FIFA had been able to strike a deal with the players' union, the rules would have represented a labour convention and would have had a “100 per cent warranty”.

So far, the only case to challenge the application of competition law to the rules came via Hungarian footballer Tibor Balog and his move to Nancy from Charleroi earlier in the year. “This could be Bosman Mark II, and indeed much worse,” warned FIFA's general secretary Michel Zen-Ruffinen at the time. “Bosman was about the free movement of players. The Balog case also brings in the antitrust laws of the Treaty of Rome.”

The case ultimately settled, but Stuys points out that there is still an opening for a legal challenge. “When you're creating a restriction to the free movement of workers it must be justified, and you must find a justification that is acceptable under the treaty rules,” he says. “Such a restriction must be proportionate and absolutely necessary to achieve that goal.” It remains to be seen whether this will hold true or not.