A case for ending football’s mid-season transfer windowRustam Sethna
"Europe has risen to the occasion and won the match, ensuring a great victory both for football and for Europe. Club football represents much of what we are striving to achieve in Europe in terms of exchanges of players, fans and ideas...We have managed to achieve an outcome that will preserve the legitimate rights of players to move from one country to another whilst ensuring European football will be able to go from strength to strength.”
Mr. Romano Prodi, President of the European Commission (6 March 2001) 1
The context of the statement above is of landmark importance – Mr. Prodi’s words marked a negotiated settlement arrived at between the European Commission, FIFA and UEFA, giving birth to the FIFA Regulations on the Status and Transfer of Players (RSTP).
However, the RSTP and the resultant "transfer system" as we know it today, was a consequence of the opening of ‘a Pandora’s box that cannot (and should not) be locked ever again’2, namely, the Bosman ruling (Bosman)3.
Bosman is known for having abolished the system where an out-of-contract player’s registration could be withheld for lack of a transfer fee, as this was deemed incompatible with the EU principle of "free movement of people"4. However, the payment of a transfer fee for a player still under contract was not declared unlawful by the European courts in that instance. Even today, clubs continue to buy and sell contractually bound players for large sums of money.
The current practice, it has been argued5, continues to impede a player’s "free movement" rights. For example, a player can only move to another club with the consent of the current employer, which is unlikely to be forthcoming without a new club paying a transfer fee, which is sometimes unaffordable. Additionally, under Article 6 of the RSTP, the registration of players may only take place during an aggregated period of approx. 4 (four) months each year (Registration Period). Registration Periods are divided into two – a longer 12 (twelve) week period and a shorter 4 (four) week period – referred to as ‘transfer windows’ in common parlance.
This article offers the author’s view on why the FIFA’s mid-season transfer window should be abolished, and why the pre-season window is sufficient.
The transfer system: striking the right balance
The legitimacy of transfer windows (albeit in basketball) has been examined by the European courts in the case Jyri Lehtonen and Castors Canada Dry Namur-Braine ASBL v. Fédération royale belge des sociétés de basket-ball ASBL (hereinafter, “Lehtonen”).
In Lehtonen6, transfer windows were justified not on economic, but rather on sporting grounds. This case involved a Finnish basketball player who wished to play for a Belgian team in the play-offs, after the regular season but registered to play after the transfer deadline.7
Citing Bosman, the Court observed on the one hand that being fielded is the “essential purpose of a professional player’s activity” and the rules prohibiting fielding restrict the chances of being employed. As such transfer windows posed restrictions to the principle of "free movement of people" enshrined by Article 45 of the Treaty on the Functioning of the European Union (TFEU).
However, on the other hand it was held that “late transfers might be liable to change substantially the sporting strength of one or the other in the course of the championship, thus calling into question the comparability of results between teams taking part in that championship, and consequently the proper functioning of the championship as a whole” 8. The impression therefore, was that mid-season transfers could substantially impact the competition between teams during a championship, but a transfer window by itself, was not incompatible with EU law..9
In the footballing context, issues have been raised with the (in the view of some) “anti-competitive, unjustified and illegal” nature of the football transfer system, with FIFPro filing a competition law complaint against FIFA, before the European Commission10. And while the complaint was subsequently withdrawn by FIFPro, it was done on the basis of a settlement agreement entered into with FIFA, which aimed to overhaul the transfer system through a dedicated Task Force set up by the FIFA Football Stakeholders Committee. The review is ongoing and certain changes to the FIFA Regulatory regime are being implemented in a phased manner, as will continue to be the case in the near future.
The football transfer system is therefore a constant tug-of-war between the principles of
not operating in a manner which unfairly restrains the ability of a player to carry out his trade, on the other.
In a sense, the transfer system represents FIFA’s attempt at finding a "middle-ground" between each of these principles.
However, certain eminent footballing personalities (such as Infantino13 and Wenger14), have publicly stated their belief that abolishing the shorter mid-season (i.e. “January” for most European leagues) transfer window (JTW), would be a more effective step towards striking a balance between the need for players to fulfil their contracts on the one hand while respecting their freedom of movement, on the other.
The JTW: familiar but unnecessary
On the face of it, the JTW may well seem necessary because it is familiar. However, there are, in the author’s opinion, several compelling reasons favouring its abolishment.
The JTW provides an opportunity for impatient players, especially those who are past the "protected period" of their contracts, to engage with other clubs and engineer a move away from their current clubs. Consequently, "want-away" players can have a negative impact on the morale and unity of the rest of the squad. Having a single summer transfer window would minimise this effect.
Similarly, the JTW is just another opportunity for agitated agents to engineer the transfer of a player for personal gain. A study commissioned by FIFPro (the international player’s union)15, has alleged that transfer windows facilitate the circulation of money, only into treasuries of big clubs and pockets of agents. While there is no saying that the same monies would simply circulate during, summer transfer windows, abolishing the JTW would curb this occurrence.
In addition to agents, the Telegraph has previously reported16 allegations that 8 (eight) different Premier League managers were willing to accept bribes to facilitate transfer deals. It is therefore argued that the JTW therefore facilitates corruption and other similar side-payments.
The JTW serves as an easy escape route for the already rich clubs to reinforce their squads, often at inflated prices (for example Andy Carroll’s transfer from Newcastle to Liverpool on deadline day of the 2011 JTW, cost £35 million. Carroll failed to make any real impact at Liverpool). Players are therefore placed under tremendous pressure to live up to their (often) unjustified price tags doing more harm than good for both player and club (for example Fernando Torres at Chelsea).
Expenditure in the JTW also impairs the development of a club’s youth, as short-term reinforcements constantly stand in the way of opportunity for the youngsters, hampering not only their development in the short term, but also their careers in the long term. For example, Chelsea’s recruitment of Juan Cuadrado from Fiorentina in the 2015 JTW, despite having the firepower of a high quality midfield supported by members of The FA Youth Cup winning side. Cuadrado was loaned-out half a season later and most of the youth still have not broken into Chelsea’s first team.
Additionally, smaller clubs with the economic lower hand, are susceptible to having their squads raided by their richer competitors. This not only disrupts promising momentum but also leaves these clubs with little or no time to find appropriate replacements. For example transfer of Wilfried Bony from Swansea to Manchester City in the 2015 JTW. Bony was then loaned to Stoke City in August 2016, only to be sold back to Swansea in 2017. On the flipside however, it has been argued that the JTW presents these smaller clubs with the opportunity to bolster their squads with reinforcements, which are likely to help avoid relegation over the latter half of the season. This holds true particularly when smaller clubs have their squads raided towards the end of the summer window, with little time to recruit reinforcements.
Consequently, fans who pay good money for season tickets, arguably do not get their money’s worth when key players leave mid-season, resulting in a subsequent drop in their team’s form. For example, the fans of Barnsley FC have even officially petitioned to FIFA to abolish the JTW.17
The JTW gives the media an unnecessary opportunity to speculate and spark rumours for the purposes of boosting their readerships/ viewerships. Media speculation often has adverse knock-on effects on player morale and performance, causing a shift in mental focus on everything but football.
In sum, it is the author’s opinion is that the JTW considerably compromises the integrity of footballing competition. A mid-season transfer window allows a player who contributes to the success of a team for one half of the season, to strengthen a rival for the second. Surely, the principles of loyalty along with the desire to finish what was started at the beginning of a season is integral to cohesion and teamwork? Surely a 12 (twelve) week summer window is sufficient for a club to assemble/ reinforce a squad?
1 Commission Press Release of 6 March 2001, IP/01/320 ‘Commission President Prodi Welcomes Outcome of Football Transfers Talks’, Europa.eu [online]. Available at: https://goo.gl/yJH928. [Accessed 27 February 2018].
2 Duval, A. and Van Rompuy, B., (2016) ‘Introduction’, The Legacy of Bosman: Revisiting the Relationship between EU Law and Sport, ASSER International Sports Law Series, The Hague: Netherlands, T.M.C. Asser Press, 2016. Page 9.
3 Case C-415/93 Union Royale Belge des Sociétés de Football Association and others v. Bosman and others, ECLI:EU:C:1995:463.
4 Now enshrined by Article 45 of the Treaty on the Functioning of the European Union.
5 Pearson, G., (2015) ‘Sporting Justifications under EU Free Movement and Competition Law: The Case of the Football ‘Transfer System’, European Law Journal, Vol. 21, No. 2 [Wiley Online Library]. [Accessed 27 February 2018]. Page 221.
6 Case C-176/96 Jyri Lehtonen and Castors Canada Dry Namur-Braine ASBL v. Fédération royale belge des sociétés de basket-ball ASBL (FRBSB), ECLI:EU:C:2000:201, paras 51-55
7 Van den Bogaert, S. (2013), ‘From Bosman to Bernard’, in “Leading Cases in Sports Law” ed. Jack Anderson, T.M.C. Asser Press: The Hague. Page 98.
8 Op cit. note 6, paragraph 54.
9 Pijectlovic, K., (2016) ‘EU Competition Law and Organisational Rules’, The Legacy of Bosman: Revisiting the Relationship between EU Law and Sport, ASSER International Sports Law Series, The Hague: Netherlands, T.M.C. Asser Press, 2016. Page 123.
10 Bret, A., (2016), ‘Analysis of the Legal Arguments in FIFPro’s Challenge to FIFA’s Football Transfer System’ LawInSport [online]. Available at: https://www.lawinsport.com/topics/articles/item/analysis-of-the-legal-arguments-in-fifpro-s-challenge-to-fifa-s-football-transfer-system? [Accessed 26 February 2018].
11 Enshrined by FIFA through Articles 13, 17 and 12bis of the RSTP.
13 Anon., (2018) ‘Infantino Plan to Reform Transfer Market: One Window, Limit Loans and Salaries…’, Marca [online]. Available at: https://www.marca.com/en/football/internationalfootball/2018/02/16/5a86de98e2704e504e8b45b3.html. [Accessed 26 February 2018].
14 White, D., (2012) ’Arsenal Manager Arsene Wenger Renews Calls for Enforced January Transfer Window to be Scrapped’ The Telegraph [online]. Available at: https://www.telegraph.co.uk/sport/football/teams/arsenal/9015739/Arsenal-manager-Arsene-Wenger-renews-calls-for-enforced-January-transfer-window-to-be-scrapped.html [Accessed 26 February 2018].
15 Szymanski, S., (2015) ‘The Economic Arguments Supporting a Competition Law Challenge to the Transfer System’, FIFPro [online]. Available at: https://fifpro.org/attachments/article/6241/Embargoed%20Stefan%20Szymanski%20Transfer%20System%20Analysis.pdf [Accessed 5 March 2018].
16 Szymanski, S., (2015) ‘To Clean Up Football Once and For All, We Need to Abolish the Transfer System’, The Telegraph [online]. Available at: https://www.telegraph.co.uk/football/2016/09/29/to-clean-up-football-once-and-for-all-we-need-to-abolish-the-tra/ [Accessed 28 February 2018].
17 Tennant, C., (2017) ‘I Want to Abolish the January Transfer Window for Football Clubs’ Change.org [online petition]. Available at: https://www.change.org/p/fifa-i-want-to-abolish-the-january-transfer-window-for-football-clubs [Accessed 1 March 2018].
18 Campbell, P., (2015) ‘Why the January Transfer Window should be Abolished’, The Guardian [online]. Available at:https://www.theguardian.com/football/blog/2015/feb/02/january-transfer-window-deadline-day-abolished [Accessed 28 February 2018].
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- Tags: Athlete Welfare | Competition | Employment | EU | European Commission | FIFA | FIFA Regulations on the Status and Transfer of Players | Football | Premier League | Regulation | Treaty on the Functioning of the European Union | UEFA
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About the Author
Rustam is an Indian qualified lawyer and sports law paralegal at Mills & Reeve, Manchester. He has recently completed a Master’s degree in International Sports Law from Instituo Superior de Derecho y Economía (ISDE), Madrid (2018 edition) and has previously gained 3 PQE as an Associate with AZB & Partners, one of India’s leading full-service law firms.