Contractual Obligations

The agreement to sign a new contract by Cesc Fabregas was rightly hailed as good news for the club. The length of time raised a few eyebrows, eight years being an incredibly long time for the player to commit to. Obviously there can be changes of heart and transfer requests submitted, offers received that are too good to refuse but it is a testimony to the commitment of both parties that the deal should be going through shortly. But is it quite the coup that it seems?

Since 2001, FIFA statutes have contained provisions for players under certain circumstances to buy out their contracts. In 2005, these were revised in conjunction with the European Union and incorporated into the regulations governing football. The press having got wind of this are calling them new regulations but in fact they have been in place for five years. Put simplistically, players contracts have a protected period during which they cannot be terminated by the player without punitive measures being levied. For those under 28 years of age when the contract is signed this period is three years and the contract must be at least four years in term. For those over the age of 28, the periods are two and three years respectively.

In order to protect the clubs investment, there are criteria denoting the compensation that must be paid for enforcing the buyout. These are:

The remuneration and other benefits due to the player under the existing contract and/or the new contract;
The time remaining on the existing contract up to a maximum of five years (the maximum duration for contracts)
The Fees and expenses paid or incurred by the Former Club (amortized over the term of the contract)
There will be a consideration of whether breach falls within the Protected Period.

On top of this, the compensation shall be set in accordance with the law of the country and the specificity of sport. The likelihood is that clubs will set the buyout compensation as a specific clause in the contract. In the case of Fabregas, this means that at the end of the fourth season of this contract, he can give notice of termination, season 2009 / 10 is the first time he can utilise this option. In order to do so, he must give notice 15 days before the end of that season that he wished to free himself and move on. So is the length of such a contract really that impressive? I am not for one minute suggesting that he will do so as I have no information to the contrary but it is a possibility should he become homesick for example and bear in mind this is a young man who by that time will have been away from Spain for about eight years.

There is one final proviso that should be borne in mind in all of this, and it is one that will probably preclude a lot of players utilising this option. If a player gives notice of termination and announces that they have agreed terms with a new club, then that new club is automatically assumed to have tapped up the player (“agitated” is the term used) and has to prove that they did not so. A case of Guilty until Proven Innocent which seems to me to be against the laws of most countries and is certainly not in keeping with the Laws of Natural Justice. Given the punishment for such actions are, as well as financially punitive, a complete embargo on all purchases for a period of six months (effectively a full season with the transfer windows currently in effect) then it is understandable that there has not been a huge stampede by players to exercise this option. Whether these provisions will stand up to a legal challenge is, I would have thought, open to some debate as in most countries, the presumption of Innocence is given in the first instance with the obligation on the accuser to prove Guilt not vice versa. Just wait for the G-14 to become one of the accused and see how long it stands up.

Thus far, only one player has done so, Andy Webster has in the last week or so received clearance by FIFA to sign for Wigan having given notice to Hearts at the end of last season. So for the last five months, he has not played a competitive match nor has he been able to train with his new employers which makes one question whether or not this course of action is a particularly appealing option for the players. Presumably, the process will speed up (or be forced to) in the future.

And before anyone says anything, yes the glass is half empty this morning!