The Courtois conundrum and the controversial clause
Published 30 April 2014 By: Joshua Kaye
This year’s Champions League semi final saw Chelsea play Athletico Madrid. Far from being a straightforward match, this fixture has opened up a debate that calls into question UEFA’s loan regulations, and touches on issues that impact the integrity of the game.
In this article, I will examine the case of Athletico’s young goalkeeper Thibaut Courtois. Courtios is on loan to Athletico from Chelsea and has been since 2011. The Premier League regulations prevent a loan player from appearing against his parent club, but UEFA do not apply the same restriction. This means that, in theory, Courtios is free to play for Athletico in the upcoming Champions League semi final against Chelsea.
However – it has emerged1 that there is a clause in the keepers’ loan contract stating that should the two clubs meet in a European tournament, Athletico must pay a fee to Chelsea if they wish for Courtios to play. Now that this situation has in fact arisen, the Spanish club cannot afford to pay the fee2– therefore, Chelsea arguably have influence over team selection by essentially ruling out one of Athletico’s best players from the game.
In a week where Crystal Palace were criticised for even enquiring about the team selection for a game, is it right that Chelsea should have such power over the player selection in this fixture? In this blog I will look at the facts of this particular case, and discuss UEFA’s response to this unique, but potentially significant, issue.
Chelsea F.C. signed goalkeeper Thibaut Courtois from Genk for €7m3 on a 5-year contract in 2011 and immediately loaned him to Athletico Madrid. After a successful first season in which Courtois won the Europa Cup, Chelsea agreed to loan him back to Athletico Madrid for the 2012/2013 season and again in 2013/2014. The advantage for Chelsea is their young goalkeeper is playing competitive football in one of the best leagues in the world and each season a ‘loan fee’ is paid by Athletico which effectively means Chelsea have paid off the initial £7m transfer charge. For Athletico, they are benefitting from a world-class goalkeeper at a relatively low cost.
In the UK, the Premier League regulations prohibit loan players from playing against their parent club in any game (Rule V7.2)4. The intention is to protect the integrity of the game – by ruling it out entirely, the Premier League are avoiding a situation whereby a player may impact the outcome of a game on the instruction of their parent club. As an additional benefit, it also rules out the potential for clauses such as the one Chelsea included in the Courtois contract.
UEFA have no such restriction – there are many reasons why this may be the case, including issues surrounding free movement of workers across Europe. There are also different rules regulating loan players in Europe, where they are recognized as temporary transfers (discussed in more detail in my previous article5).
What it means is that Chelsea were inclined to include a clause in Courtois’ loan contract, obliging the Spanish side to pay €3m should Athletico wish him to play against his parent club. This situation has now materialized – and Athletico (who are rumored to be in financial difficulty) have claimed6, via their President Enrique Cerezo, that they cannot afford this fee. As a consequence, they are unable to play their first choice goalkeeper.
The issue for UEFA is whether this clause in the contract calls into question the integrity of the game – does it allow Chelsea to unfairly manipulate Athletico’s team selection? And consequently, does this lead to Chelsea having an unfair advantage in the fixture itself, ultimately impacting the outcome of the game?
Article 37 of the UEFA Champions League Regulations 2013/2014 is titled “Integrity of the Competition” and the objective of the Article is to restrict any individual or legal entity from being able to sway the outcome of any game in any way whatsoever.
3.01 To ensure the integrity of the UEFA club competitions, the following criteria apply:
- no club participating in a UEFA club competition may, either directly or indirectly:
- hold or deal in the securities or shares of any other club participating in a UEFA club competition,
- be a member of any other club participating in a UEFA club competition,
- be involved in any capacity whatsoever in the management, administration and/or sporting performance of any other club participating in a UEFA club competition, or
- have any power whatsoever in the management, administration and/or sporting performance of any other club participating in a UEFA club competition;
- no one may simultaneously be involved, either directly or indirectly, in any capacity whatsoever in the management, administration and/or sporting performance of more than one club participating in a UEFA club competition;
- no individual or legal entity may have control or influence over more than one club participating in a UEFA club competition, such control or influence being defined in this context as:
- holding a majority of the shareholders’ voting rights;
- having the right to appoint or remove a majority of the members of the administrative, management or supervisory body of the club;
- being a shareholder and alone controlling a majority of the shareholders’ voting rights pursuant to an agreement entered into with other shareholders of the club; or
- being able to exercise by any means a decisive influence in the decision-making of the club.
The rule was discussed at great length at the Court of Arbitration for Sport in 19988 after two clubs owned by the same company were drawn to play against each other in the UEFA Cup. There was a question about whether the owners could use their position to influence the outcome of the games – and the rule was deemed as essential to stop this from happening.
It could be argued that Chelsea demanding a fee for Courtois requires similar scrutiny to this earlier case – they are influencing the sporting performance of another team in the same competition by restricting Athletico from utilizing their whole squad.
UEFA were quick to make a public statement9 after Athletico’s president aired his concerns. They stated that the “integrity of sporting competition is a fundamental principle for UEFA” and went on to say that there are “clear provisions which strictly forbid any club to exert, or attempt to exert, any influence whatsoever over the player that another club may (or may not field) in a match. Perhaps the most significant part of their statement was the assertion that “any provision in a private contract between clubs which might function in such a way as to influence who a club fields in a match is null, void and unenforceable so far as UEFA is concerned” and that a “any attempt to enforce such a provision would be a clear violation…and would be sanctioned accordingly”.
This press release shows that UEFA feel that Courtois is free play in the Champions League fixture. If Chelsea were to demand a fee for the Courtois appearance then UEFA are suggesting they consider this to be impacting on the integrity of the game. Clearly, this could ultimately lead to a full disciplinary process including a proper and fair hearing where the clause in question would be dissected and any sanction would be decided.
It seems that due to the close relationship an arrangement has been reached between the two clubs and Thibaut Courtois will play.
Enrique Cerezo, the Athletico President, used the media to his advantage in this situation – he gambled by publicly releasing details of the clause. The result was that UEFA publicly stated that should any contractual clause be enforced then action would be taken to determine whether it is enforceable.
On a wider scale, it has highlighted an issue for UEFA regarding the ability for clubs to restrict the actions of their loan players. The solution is not as simple as replicating the Premier League regulations – there are European Laws that make it a more complex task (a subject for another blog).
However, this is unlikely that Chelsea will be the only, or the last, club to investigate ways of limiting their loan players – UEFA will need to look at how they can avoid these situations, whilst working within European law and continuing to protect the integrity of the game.
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- Tags: Athletico Madrid | Chelsea | Competition Law | Contract Law | Employment Law | Europe | Football | La Liga | UEFA
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Joshua is a commercial solicitor with experience providing advice to businesses in the media, entertainment and technology industries. His work has included drafting and negotiating commercial agreements, advising on the use of intellectual property and providing employment advice. His passion lies in the sports industry with a particular focus on issues regarding competition law, sponsorship and the rising importance of social media.