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.
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- 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
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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.