Resolving failed last minute football transfer deals: lessons from the De Gea case
Published 16 December 2015 By: Luca Ferrari
This article examines football’s transfer window deadline, looking at examples of what can go wrong, explaining the regulations and systems behind the deadline, and asking whether the current system could benefit from additional flexibility.
Why is there a transfer window in football?
The football transfer window was “introduced as part of a compromise agreement with the European Commission about how the whole transfer system [in football] worked and how it could best preserve contractual stability for both the player and the club while allowing movement [of players] at prescribed times during the year – the summer and winter transfer windows in effect.”1 An analysis of the merits of the current transfer system in football is outside the scope of this article. However, it is worth mentioning that European clubs believe the system “enables clubs and managers to plan for a set period of time, knowing the players they have at their disposal” and according to FIFA it provides for “a system to reward clubs investing in the training and education of young players”.2
It is also worth noting that FIFPro are challenging the current transfer system in the European Courts. However, this challenge will be a lengthy process and therefore in the foreseeable future the transfer system will continue to operate in its current form.
Examples of missed deadlines
The most recent transfer window was characterised by a few significant deals that were not finalised before the designated deadline and therefore fell through. Notably, the international transfer of the Spanish goalkeeper David de Gea from Manchester United to Real Madrid and the Italian domestic transfer of Sampdoria’s midfielder, Roberto Soriano, to Napoli. In both cases, forms were not filed prior to deadline.
Soriano's transfer delay was due to contractual issues, particularly related to the exclusive image rights license that Napoli requires each player to sign. The contract did not reach the Serie A league officials for ratification before the 11p.m deadline.
The de Gea transfer fell through only a few minutes before the deadline. As a consequence, Real Madrid’s goalkeeper, Keylor Navas, who was heading in the opposite direction from Real Madrid to Manchester United, was not transferred. Real Madrid failed to file de Gea and Navas' paperwork on time to meet the Spanish transfer deadline in accordance with the FIFA Regulations on the Status and Transfer of Players ("FIFA Regulations").3
Similar problems have arisen before. In 2013, the Swiss midfielder, Pajtim Kasami’s, transfer from Fulham to Pescara did not occur due to a failed internet connection.4 Indeed, Kasami was set to complete a move to the Italian club on the last day before the window closed. The player's international clearance papers did not go through on time due to a failed Wi-Fi connection at the Milanese hotel where the final phase of the Italian winter transfer market was set.
Last minute transfer failures on procedural grounds are rather typical and recurrent issues, affecting both domestic and international transactions.
The deadline regulations regarding international transfers
To effect an international transfer, clubs must record buying and selling of players through the FIFA Transfer Matching System ("FIFA TMS" or "ITMS")5 (see article by Barry Lysaght of FIFA TMS for details on how this system works here6). FIFA TMS is mandatory for all member associations of FIFA and works to increase transparency and integrity. It operates a web-based regulatory system used by all football associations and most football clubs in order to manage the international transfers of professional players.
The purchasing club has to upload all of the information to the system and the selling club in turn has to match all the player’s details (player’s identity, employment details, the agreed transfer fees and intermediary involvement). Once this information is complete and crosschecked for accuracy, the ITMS will enable the football associations involved to request and deliver the International Transfer Certificate ("ITC"), without which a player is not eligible to play in the new country.
FIFA TMS has recently also launched the Domestic Transfer Matching System ("DTMS").7 Since DTMS and ITMS are fully integrated, football associations and their members will now be able to access both international and domestic transfers in one system, providing a complete picture of all their players’ transfers.8
The system imposes strict rules in relation to transfers. Once the transfer deadline expires, ITMS and DTMS cease processing transfers. No exemptions are currently given for late filings.
Introducing some flexibility: the Premier League’s “Deal Sheet”
In light of the deadline’s rigidity, the English Premier League recently introduced some flexibility into the process with the use of a "deal sheet", which allows a club to confirm that a deal has been reached within the deadline, while obtaining additional time to submit the missing documentation.9
The "deal sheet" is a document, which confirms that an agreement for the transfer of a football player has been reached by two clubs, and may only be used if transfer negotiations are completed in the final two hours of the transfer window.10 Indeed, given that the domestic transfer cut-off time is 11pm of the last day, the fully completed and executed sheet must be sent to the Premier League and the FA after 9pm and no later than the 11pm deadline.11 Once the deal sheet has been transmitted, clubs are granted a two-hour extension (i.e. until 1am) to submit the full, required paperwork, namely: the employment contract, the transfer agreement and permission to work in the UK. During the last 2015 winter transfer session the English midfielder, Darren Fletcher, moved from Manchester United to West Bromwich Albion after the 11 pm deadline by means of a deal sheet.12
The "deal sheet" process applies to international transfers as well. However, the deadline in that case is set at midnight, therefore Premier League clubs have only one additional hour to complete the paperwork. One of the most famous recent international transfers that went through by means of the deal sheet was last year's move by Radamel Falcao from Monaco to Manchester United.13
Adopting a more flexible deadline day model
The 'deal sheet process' is a good example of how flexibility can be introduced within the FIFA TMS worldwide, and the author is of the view that the system as a whole could benefit from such additional flexibility.
In the author’s experience, and as other football market operators will likely know, transfer campaigns are made of complex and often interdependent negotiations, in which the domino effect is rather commonplace. By their nature, negotiations are akin to poker games and the countdown to closing the transfer window can become a key tactical factor in securing a deal. Considering such obvious marketplace dynamics, last hour or even last minute transfers are recurrent.
In the author’s view, transfer windows are necessary and they obviously imply strict application of deadlines. However, in light of the way the market operates, and so as to avoid situations like those detailed above, it would appear wise to separate the actual agreement from its ensuing formal execution. Provided the agreement, in the form of a simple, duly signed document, is recorded within the deadline it would not seem too disruptive to allow extra time to process relevant submissions through the TMS and grant an extension in the case of proven connection failures.
Should this system be introduced by FIFA member associations, it would undoubtedly reduce the risk of player transfer abortions due to last minute, contingent factors and possibly avert the risk of bad faith conduct.
In the EU, free movement of players is currently limited under a complex set of rules (imposing - inter alia - fixed transfer windows) under the so-called "sporting exception". As we know, under EU law such limitations must pursue a legitimate aim and be proportionate and adequate in achieving it.
In light of this, one needs to consider whether "casualties" like the missed transfer of David de Gea and ensuing damages to players' (short) careers could be avoided by introducing some flexibility and back-up protection into the TMS, without compromising the ultimate (and legitimate) goal of ensuring certainty and uniformity within the players transfer market. Apparently, The PL's "deal sheet process" does it and should be studied, adapted as necessary and introduced at the international level.
Luca Ferrari was assisted by associate Edoardo Revello and trainee Marco Tieghi
This work was written for and first published on LawInSport.com (unless otherwise stated) and the copyright is owned by LawInSport Ltd. Permission is granted to make digital or hard copies of this work (or part, or abstracts, of it) for personal use provided copies are not made or distributed for profit or commercial advantage, and provided that all copies bear this notice and full citation on the first page (which should include the URL, company name (LawInSport), article title, author name, date of the publication and date of use) of any copies made. Copyright for components of this work owned by parties other than LawInSport must be honoured.
- Tags: Contract Law | Employment Law | European Commission | European Union | FIFA | FIFA International Transfer Matching System (ITMS) | FIFA Regulations on the Status and Transfer of Players | FIFA's Domestic Transfer Matching System (DTMS) | FIFPro | Football | Governance | Italy | Premier League
- The business of transferring minors in football - can more be done to protect young footballers?
- Football transfers: Buy-Back Clauses explained
- A guide to the key legal issues in the football transfer window
- FIFPro takes legal action against FIFA over transfer system
Luca Ferrai is the Global Head of Sports at Withers. He specialises in sports marketing and sports law and provides legal advice to athletes, footballers, agents, coaches, managers, clubs, leagues, federations, investors and sponsors. He provides advice on: sponsorship contracts; playing contracts; coaching contracts; managers employment contracts; international player transfers; agency contracts; intellectual property licensing and audio-visual rights licensing. He also has long-standing experience in national and international sports regulatory issues as well as in sports commercial litigation, and in particular national and international sports arbitration.