Tapping-up in football: Complying with domestic and international transfers rules

Published 11 May 2018 | Authored by: Sean O'Toole

Spending on transfers continues to surge, with reports of previous records being broken appearing to be a bi-annual event, as stats from the Premier League clubs demonstrate1:

Window

Spend

Window

Spend

Summer 2014

£809.6m

Winter 2015

£118.2m

Summer 2015

£858.6m

Winter 2016

£177.5m

Summer 2016

£1.120bn

Winter 2017

£236.7m

Summer 2017

£1.413bn

Winter 2018

£419.5m

Summer 2018 will be yet another busy period for clubs in the Premier League and the English Football league (“domestic clubs” / “domestic leagues”). With so much at stake from both a financial and a results perspective, backroom teams will already be busy planning for the season ahead. That involves not only compiling transfer target lists, but also taking any appropriate steps to try to keep hold of the players they wish to retain. Whilst clubs will ‘do whatever they can’ to land their prime targets, they will also ‘do whatever they can’ to fight off other clubs that are interested in their key players.

This article addresses what "do whatever they can" means for clubs if they are to comply with, or enforce their rights under, the relevant tapping up rules. It looks at the position when domestic clubs deal with other domestic clubs, as well as when they deal with clubs outside the domestic leagues (“international transfers”). It concludes with some remarks on the shortcomings of the FIFA regulations relating to tapping up and the ways in which domestic clubs can be disadvantaged by the different regulatory regimes that apply to domestic and international transfers. Specifically, it looks at:

  • What are the relevant rules on tapping up?

    • FIFA

    • Premier League

    • English Football League

  •  Key lessons on complying with the rules:

    • Domestic transfers

    • International transfers

Recap: what are the relevant rules on tapping up?

The rules concerning tapping up which affect domestic clubs are set out in:

The FIFA regulations

Regulation 18.3 of the FIFA Regulations, which contain the relevant rules governing international transfers, provides:

A club intending to conclude a contract with a professional must inform the player’s current club in writing before entering into negotiations with him. A professional shall only be free to conclude a contract with another club if his contract with his present club has expired or is due to expire within six months. Any breach of this provision shall be subject to appropriate sanctions.

The Premier League rules

Section T of the Premier League rules provides:

T.1. A Club shall be at liberty at any time to make an approach to a Player with a view to negotiating a contract with such a Player: T.1.1. if he is an Out of Contract Player; or T.1.2. in the case of a Contract Player, with the prior written consent of the Club (or club) to which he is contracted.

T.2. A Club shall be at liberty after the third Saturday in May in any year and before the 1 July next following to make such an approach to a Contract Player: T.2.1. who will become an Out of Contract Player on that 1 July; and T.2.2. who has received no offer from his Club under Rule V.17.2 [which deals with soon to be out of contract players receiving offers from the club that they are registered with]; or T.2.3. who has received but has declined such offer.

T.3. Any Club which by itself, by any of its Officials, by any of its Players, by its Intermediary, by any other Person on its behalf or by any other means whatsoever makes an approach either directly or indirectly to a Contract Player except as permitted by either Rule T.1.2 or Rule T.2 shall be in breach of these Rules and may be dealt with under the provisions of Section W of these Rules (Disciplinary).

T.4. For the purpose of Rules T.2 and T.3, “Contract Player” shall include a player who has entered into a written contract of employment with a Football League [defined to include the English Football League] club.

T.8. A statement made publicly by or on behalf of a Club expressing interest in acquiring the registration of a Contract Player or by a Contract Player expressing interest in transferring his registration to another Club (or club) shall in either case be treated as an indirect approach for the purposes of Rules T.3 and T.6.

Also of relevance, Section B.16 of the Premier League rules provides:

In all matters and transactions relating to the League each Club shall behave towards each other Club and the League with the utmost good faith.

The EFL regulations

Regulation 63 (which is in Section 6) of the EFL regulations provides:

63.1 Clubs shall not directly or indirectly approach any Player whose name is on the Clubs List of players (as described in Regulation 67) of another Club except in accordance with Regulations 65 [transfers after expiry of contract] or 68 [players over 24].

63.2 Any Club wishing to obtain the services of a Player whose registration is open to transfer whilst under contract (as indicated on a Club’s List of Players) must communicate any offer in writing (or if there is insufficient time, by telephone, confirmed in writing) to the Club holding the registration of such Player.

Regulation 1 defines “Club” as follows:

any Association Football club which is, from time to time, a member of The League, save that where the context so requires in Section 6 of these Regulations, a reference to a ‘Club’ shall also include clubs from time to time in membership of The Premier League.

Complying with the rules

Dealings between domestic clubs

When a domestic club wishes to deal with a player from another domestic club, the "do nots" are clearly set out in the Premier League rules and the EFL regulations: except where the club has the consent of the player’s contracted club or in the limited circumstances in Section T.2 (for Premier League clubs, which are set out above) or Regulation 65 or 68 (for English Football League clubs, which deal with out of contract and under 24 players respectively):

  • Do not negotiate terms with the player;

  • Do not directly approach the player, or through his agent or through any other person;

  • Do not indirectly approach the player, for example, by making public statements expressing an interest in acquiring the player2.

In other words, clubs need to keep their transfer target lists private insofar as a target player is from another domestic club.

These clear and stringent tapping up rules are important to the Premier League and the English Football League. The Chairman’s Charter of the Premier League, for example, provides six principles that the Premier League will ensure that its clubs follow, one of which is that the clubs will:

respect the contractual obligations and responsibilities of each other’s employees and not seek to breach these or to make illegal approaches.

If a club is believed to have fallen foul of Section T of the Premier League rules or Regulation 63 of the EFL regulations, the contracting club has the right to make a complaint under the disciplinary procedures as set out at Section W of the Premier League rules or Section 8 of the EFL regulations.

This author’s previous article on tapping up3 dealt with the enforcement procedure and possible sanctions for non-compliance with the tapping up rules in the Premier League and whether they act as an effective deterrent against the practice. The enforcement procedure and possible sanctions are similar in respect of domestic clubs outside the Premier League, except that the complaint is made to the EFL.

A reported example of domestic tapping up

The author’s previous article on tapping up referred to the example of Liverpool FC’s reported tapping-up of Southampton FC’s Virgil Van Dijk, which led to Liverpool issuing an apology and not continuing its pursuit of the player during the summer 2017 transfer window4. Liverpool subsequently acquired their target in the January 2018 transfer window, but for a fee of £75 million, £15 million more than the fee they were understood to have offered the previous summer.

If it was Southampton’s objective to hold on to their key player for a bit longer and to drive up his price, by using the Premier League tapping up rules as a shield, they succeeded. However, Southampton retained a player who was noticeably unsettled by Liverpool’s interest in signing him, and whose performances during that period were below par compared to those after the transfer.

International transfers

By contrast with the domestic rules, the FIFA regulations do not impose a clear set of "do nots" when dealing with international transfers. They set out only two principles:

  • A club intending to conclude a contract with a professional must inform the player’s current club in writing before entering into negotiations with him; and

  • A professional shall only be free to conclude a contract with another club if his contract with his present club has expired or is due to expire within six months.

Does an obligation to “inform” include an obligation to obtain the consent of the player’s current club, before entering into negotiations with him?

Does “entering into negotiations” include making public statements of intent?

The answer to these questions must be "surely not", as it goes against the clear wording of the regulations. That might explain why, despite tapping up being so rife in football, FIFA has reportedly received very limited complaints relating to the practice5.

Put bluntly, despite tapping up being a common feature of international transfers, clubs are not actually falling foul of the FIFA regulations.

To demonstrate this point, the author can find no high profile examples of complaints where the practice concerns an international transfer, only ‘threats’ of complaints being publically made. For example, Monaco threatened to report a number of clubs including Manchester City to FIFA in relation to approaches made for Kylian Mbappé, issuing a statement which included:

Monaco regretfully notice that "important" European football clubs made contacts with Kylian Mbappé (and his entourage) without its authorisation. Monaco want to remind these clubs that such actions are contrary to the article 211 of the administrative regulation of the French Football League (Ligue de Football Professionnel) [the French domestic rules, which would apply to other French clubs like Paris Saint-Germain and so are outside the scope of this article] and to the article 18.3 of the regulation of the status and the transfer of the players of Fifa [which are set out above and apply to international transfers].6

Regulation 18.3, however, does not provide Monaco with the right or power to "authorise" contact being made with its players. Provided that the clubs have inform Monaco in writing then they are complying with the Regulation 18.3. It is therefore highly doubtful that the public statement acted as an effective deterrent to any further approaches. Indeed, Mbappé joined Paris Saint Germain on loan with a binding option to sign him only one month after the public statement was released.

A recent example of tapping up in an international context

A recent example of the (lawful) tapping up of a Premier League player by a club abroad concerns Liverpool’s attempts to retain their influential midfielder Emre Can.

Juventus’ general manager, Giuseppe Marotta, has previously expressed a clear desire to sign Emre Can, whose contract expires in the summer, with public statements such as:

We’re ready to take any opportunities, I won’t deny we are concentrating on Emre Can and awaiting his response. That is our primary objective.7

Mr Marotta’s statements have not contravened any FIFA regulations since the making of public statements is permitted. That is despite both Liverpool and Juventus being in the Champions League at the time when the public statement was made, which could have resulted in Liverpool suffering a competitive disadvantage, by virtue of Can and possibly other players becoming unsettled at the transfer rumours.8

Further, provided that Juventus simply informed Liverpool in writing of their intention to enter into negotiations with Can before doing so, any such negotiations have been conducted in accordance with the FIFA regulations. That is irrespective of Liverpool’s view of the approach in light of Can still being under contract with them at the time and the impact of those discussions on the player’s performances.

Finally, Juventus have been free to conclude a contract with Can since January 2018, being six months before the expiry of his current contract with Liverpool.

Concluding remarks

The author’s previous article9 set out some of the reasons for and against governing bodies controlling tapping up in football, concluding that controlling the practice is in the best interests of the sport. The FIFA regulations do not, however, adequately protect the sport from tapping up practices for the reasons set out above. In particular, the FIFA regulations do not sufficiently promote the principles of sanctity of contract, respect between clubs, or minimising the unsettling of player under contract. They favour the larger clubs who are better able to turn players’ heads.

Further, where a domestic player is on the transfer target list of both a domestic club and a non-domestic club, the domestic club is at a disadvantage due to the significant differences between the Premier League rules, EFL regulations and the FIFA regulations. Using Emre Can as an example:

  • Juventus merely have to inform Liverpool, in writing, of their intention to enter negotiations with Can, following which they are free to speak to the player/ his agent. A domestic club, however, must first obtain the contracting club’s written consent before doing so;

  • Juventus can conclude a contract with Can six months before the expiry of his current contract. A domestic club, however, must wait until the third Saturday in May to even approach the player, unless Liverpool’s prior consent is provided; and

  • Juventus can make public statements expressing a desire to sign the player at any time. A domestic club, however, is precluded from making indirect approaches which includes not making any public statements of interest.

Further reading

The author’s previous article, Tapping-up (tampering) of sports players: How the NBA rules compare to the English Premier League10 provides readers interested in this topic with further commentary on tapping up in the Premier League and the NBA, as well as providing further insight in to the pros and cons of regulating the practice.

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About the Author

Sean O'Toole

Sean O'Toole

Sean is an associate in the sports law team at Beswicks Legal. He acts for clients across a broad range of commercial and regulatory disputes, with a particular focus on acting for clubs and sportspersons.

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