Tottenham Hotspur fans have been left in a state of suspense recently over rumours that Gareth Bale is hoping to leave the club and transfer to Real Madrid. The Spanish club has reportedly offered to pay a record £85 million for Bale. However, Spurs chairman Daniel Levy has insisted the player is not for sale despite reports that Bale has told the team's manager, Andre Villas-Boas that he is keen to go. At only 24, Bale was named the Player of the Year by the Professional Footballers' Association and Footballer of the Year by the Football Writers' Association last season. It is understandable, given these accolades and a high scoring record, that Tottenham are reluctant to release Bale from his contract. This is not an unfamiliar situation and various other high-profile players including Rooney, Ronaldo and Tevez have tried to leave clubs who were reluctant to see them go.
Are football players employees?
We are often asked whether footballers are employees and technically the answer is yes. However, the reality of the situation is much more complicated. A person is generally classed as an employee of another party if their relationship contains the following key elements:
- The individual works under the control of the employer;
- There is a mutuality of obligations between the individual and employer; and
The individual is required to do work personally.
Although footballers do meet the above criteria their relationship with their employer, the club, is different to that of other employees and footballers have a monetary value to their employers which gives them a great deal of power.
Footballers are rarely subject to disciplinary proceedings or dismissed for misconduct even where their activities could bring the club into disrepute. Topflight players are so valuable to their clubs that the club may be reluctant to dismiss them and lose their skills regardless of their conduct. The value of the player to the club and its fans means that the club never really has the level of control over the player that other employers have over employees.
Despite some of the benefits that footballers enjoy they are often subject to tighter restrictions than other kinds of employees particularly in relation to approaching other potential employers. Football Association Premier League rule K5 prevents footballers contracted to a club from approaching other clubs to seek employment until 5 weeks before the end of their contract and likewise rule K3 prevents clubs approaching such footballers unless in both cases the consent of the footballer's current club has been obtained. While this appears to be a restraint of trade the FAPL have argued that it is necessary to ensure player performance and team stability and sanctions will be applied where there is a breach. Ashley Cole and his agent were famously fined for meeting with Chelsea officials while Cole was contracted to Arsenal. It is worth noting that there is no reciprocal agreement with other European countries such as France, Spain and Italy to prevent foreign clubs approaching players in the English Premier League and the FIFA regulations do not restrict this.
Can footballers be forced to stay at a club until their contract expires?
Prior to the ruling in Union Royale Belge des Sociétés de Football Association ASBL v Jean-Marc Bosman (1995) C-415/93 (the "Bosman" ruling) footballers were effectively tied to their club even after their contract expired pending the agreement of a transfer fee with their new club. Bosman successfully challenged this on the basis that it contravened EU rules on the free movement of workers. Now when a player's contract expires they are eligible for a free transfer to another club. But what happens if, like Bale, a player has a few years left to run on his contract?
The player will generally be required to stay at the club until the end of his contract unless the club agrees otherwise though it can be very difficult for football clubs to retain players who have expressed a desire to leave. Although the player is required to stay they might not play to the best of their ability or they might, like Carlos Tevez, refuse to play when asked. Additionally where it is well known that a player wishes to leave it may harm team morale and fan support to keep him at the club until the end of his contract.
Andy Webster, who played for Scottish team Hearts walked out of his contract which had a year left to run in 2006 to move to Wigan Athletic. He was the first player to invoke Article 17 of FIFA regulations which allows a player aged between 22 and 28 to terminate his contract provided he has served 3 years under the current contract. However, if the player does this he is required to pay compensation to the club based on the level of salary left on his contract. Bale signed a new four year contract with Spurs in 2012 so is unable to invoke this provision at the moment but should he invoke it in the future he may be able to get out of his contract a year early. Although this would be at a considerable cost to him players can often recoup this sum in the signing on fee with their new club.
Can a club refuse to play a footballer during the term of his contract?
A club could potentially keep a player who wishes to transfer on the bench or play him in the reserve team until the end of his contract. This, however, can cause further problems particularly if the player is a key part of the squad and his absence would damage the team's results.
Arguably clubs may have a duty to provide work to footballers and may not be able to unreasonably withhold work from them depending on the terms of their contract. Although it would be difficult for a player to argue this point, a failure to play a clearly valuable player may give the player just cause to leave the team depending on the circumstances.
Additionally where a player has time left to run on their contract a transfer fee will still be payable if they move to another club. By not playing the player the club could reduce the possible transfer fee other clubs are willing to pay for the player and this will reduce in any event as the contract nears its end. If the club do retain an unwilling player until the end of the contract he will be able to move to another club for free, as per the Bosman ruling. The club would then lose out on the transfer fee and in Bale's case this would be a substantial loss. The power players wield over clubs therefore puts clubs in a very difficult position in relation to proposed transfers.
What can clubs and players do in this situation?
The options for Spurs are fairly limited. They can try and persuade Bale that he should stay at the club willingly and reports suggest that the club has tried to renegotiate Bale's contract to encourage him so stay. Formal and informal requests to transfer have been withdrawn by topflight players at various clubs in the past. Alternatively the club could continue to refuse Real's offer and hope that Bale continues to play for the club and to do so well. It is unlikely Spurs will want to keep Bale on the bench given his scoring record last season so this is unlikely to be a viable option.
If a player is keen to move to another club he is able to submit a formal transfer request to his current club. This publically states that the player wishes to leave the current club and invites approaches from other teams. The club will not be obliged to grant the player a transfer but it can be difficult to refuse it in the light of this fairly public manoeuvre. Players are often reluctant to take this step as it can affect fan support and loyalty to the player. It may also affect the player financially if he has, for example, loyalty bonuses in his contract. Bale may still make a transfer request or it may be that the threat of one causes Levy to rethink his position.
It remains to be seen whether Gareth Bale will leave Tottenham but the issue of how clubs deal with players who wish to leave is likely to remain a live one.