Arsenal v Hleb as the Club leads the fight against player
Last updated: Sunday, May 11, 2008
Arsene Wenger signalled his intention to stand firm against Alexander Hleb’s publicised intention to leave the Emirates in his recent press conferences. Arsene Wenger is angry that players seem to think that the clubs are powerless to act, and he has made clear that Hleb remains under contract.
The Hleb situation is all the more galling for the Arsenal manager when one recalls that Hleb was the subject of an alleged tapping up when Arsenal were in Italy to play AC Milan during their Champions League encounter. Alexander Hleb is alleged to have slipped out to meet agents of Inter Milan using the excuse that he was going out to buy an ice cream.
Inter Milan are going to be reported to FIFA based on further information received by Arsene Wenger, and despite his very firm assurances before a meeting of shareholders at the Emirates that Hleb was going nowhere, Hleb’s agent upped the ante by declaring that his client would be finalising his exit within two weeks using the Webster clause.
This Webster clause is the latest in the test cases that have brought the player contract into conflict with Employment law as defined by the European Court. Everyone knows of the Bosman ruling.
Before Bosman, there was the Freedom of Contracts arrangement. which meant that at the end of their playing contracts, professional football players can now exercise their option to leave their club. If the club offered the player new terms that were at least as attractive as the old ones, then the selling club was still entitled to a transfer fee. In the event that the two parties could not agree, then the matter would be referred to an employment tribunal whose decision on the fee would be binding on both parties. Players under contract in this new arrangement were not allowed to start transfer deals. The players club had to be contacted by the prospective buyer directly.In 1995 all things changed with the groundbreaking Jean-Marc Bosman case.
Jean-Marc Bosman was a footballer playing for the Belgian first division side FC Liege. At the end of the 1990 season Bosman wanted to move to French side Dunkirk. His club tried to stop the move from taking place by using the cross-border transfer ruling, which meant the clubs had to agree a fee before a player was allowed to transfer. In so doing, FC Liege tried to make the move impossible by demanding a very high transfer fee for the player. Bosman protested against this decision and he filed suit against FC Liege, the Belgian football authorities, and the European football authorities, arguing that the football regulations on payment of transfer fees stopped EU citizens from having the human right of freedom of movement in employment.
In 1995 in a dramatic ruling, the European Court of Justice ruled in favour of Jean-Marc Bosman, deciding that the existing football transfer rules were in breach of the European Union law on the free movement of workers between member states. The European Union ruling eventually led to the free movement of footballers between clubs within and between EU countries, with no fee payable when players’ contracts have expired. The new ruling has also meant that players are now allowed to discuss and negotiate their own deals with a new employer when their previous contract has expired.
Article 17 of the FIFA statutes (page 14) on player transfers is very detailed, but there are a couple of clauses that Hleb’s advisors would do well to read again. The first relates to the period of notice that is required.
Disciplinary measures may, however, be imposed outside the protected period for failure to give notice of termination within 15 days of the last offi cial match of the season (including national cups) of the club with which the player is registered.
In Hleb’s case he would have serve notice by May 26, or suffer the risk of being banned from playing all forms of football for between four to six months depending on the gravity of the case.
Next there are warnings for Inter Milan in two clauses…
"Any person subject to the FIFA Statutes and regulations (club offi cials, players’ agents, players, etc.) who acts in a manner designed to induce a breach of contract between a professional and a club in order to facilitate the transfer of the player shall be sanctioned…
In addition to the obligation to pay compensation, sporting sanctions shall be imposed on any club found to be in breach of contract or found to be inducing a breach of contract during the protected period. It shall be presumed, unless established to the contrary, that any club signing a professional who has terminated his contract without just cause has induced that professional to commit a breach. The club shall be banned from registering any new players, either nationally or internationally, for two registration periods."
The Webster case which involved the transfer of Andy Webster from Hearts to Wigan was as a direct result of the two parties being unable to agree the transfer/loan fee. Hearts valued the player at 4 million pounds, and Wigan paid 625,000 pounds by way of compensation. The case was brought before the Court of Arbitration in Switzerland and the Article 17 of the FIFA rules were subject to clarification. The result was that Webster was able to buy out the remaining year of his contract by way of compensation to Hearts, this amounting to 150,000 pounds.
The ruling immediately had the effect of enabling any player aged between 23 and 28 years of age to be able to give 15 days notice after the end of the season of his intention to buy out the final year of his four or five year contract. However the move had to be to another Football association. So moves could not take place for example within the premier league, but as in Hleb’s case, the move could take place between the Premier league and Serie A. Players over the age of 28 are now able to fulfil only two years of their contract prior to be able to buying the rest of the contract.
Arsenal believe that before being able to enact such a clause, the player concerned must have had a grievance against the club and raised that matter prior to applying the Webster clause, they also feel that the grievance should be heard before the Court of Arbitration in Switzerland, in order that both parties had time to present legal arguments. All this takes time and if Hleb posts his notice of his intention to leave the Arsenal before having registered a grievance, then he could be banned from all football for a minimum of four months.
Hleb may have miscalculated given the fact that he is only 27 years of age, and despite having been at the club for the required two years, he does not qualify for the over 28 year buy out clause. One could argue whether it is in the club’s interest to retain the services of a player who no longer wishes to play for the club, and who has allegedly been tapped up by another football associations club, but Arsenal clearly feel that it has the most to lose from predatory agents from abroad, and that it needs to take a stand, so if it means that Alexander Hleb will have to "rot in the reserves" until this is concluded, then so be it… I am in agreement with Arsenal’s stance.
Fabregas the King.
mwt
