Football's Magic Money Tree

[Chester Perry]

This will get Premier League Chairman salivating, not to mention everyone else that makes a living from the magic money tree - a new report claims that global football rights (all leagues/cups) will rise from US$12.8 billion to US$31.9 billion a year in the next 5 years thanks to the growth of streaming - not sure I can see it in that time frame

http://www.sportspromedia.com/news/stre ... ecast-2024" onclick="window.open(this.href);return false;

[Chester Perry]

found out why Manchester United's commercial revenue was down last season - one of their sponsors did not pay £4m of agreed payments - United now suing them for $11m in America

https://sbcnews.co.uk/europe/2019/09/26 ... ay-agents/" onclick="window.open(this.href);return false;

Same company did not pay Watford what they were contracted to either

[Chester Perry]

Detailed piece in the Mail about Red Bull's move into football and it's long-term approach to club's and whether they will assimilate (chose that word with care) an English club

https://www.dailymail.co.uk/sport/footb ... -game.html" onclick="window.open(this.href);return false;

[Chester Perry]

A bit of ego massaging - KPMG use their own valuations to give total squad values of each of the big 5 leagues - you should note the Bundesliga has 2 less teams than the rest - also the Premier League pay prices other leagues wouldn't

https://twitter.com/Football_BM/status/ ... 1560641539" onclick="window.open(this.href);return false;

[Chester Perry]

Posted before about the possibility of Crystal Palace being up for sale - well apparently they now are - with the asking price valuing the club at £210m - that seams reasonable but they have a significant amount of debt (which they say will be cleared - not sure how?) with the prospect of a large bill for the new stand they have planning permission for

https://www.cityam.com/crystal-palace-h ... 210m-deal/" onclick="window.open(this.href);return false;

[Chester Perry]

Both Man City and Liverpool wanted it kept quiet - the £1m compensation was agreed between them - but now the FA have asked Man City for information about the hack - from the Times

FA ramps up pressure over ‘spygate’ row between Liverpool and Manchester City
City asked for information on hack claims

Matt Dickinson, Chief Sports Writer | Martyn Ziegler, Chief Sports Reporter - October 4 2019, 12:01am,

The Football Association has asked Manchester City for information on the hacking dispute with Liverpool in a significant escalation of the controversy.
The involvement of the governing body, which wants to examine any evidence gathered by City to see if there is a case to pursue, will increase pressure on the Premier League to launch its own investigations into how Liverpool came to pay City £1 million after a complaint from the Manchester club that their scouting system had been hacked.

The league has so far declined to become involved, despite a rule stating that “each club shall behave towards each other club and the League with the utmost good faith”, but that could change after the FA’s written request to see evidence.

The FA’s move is not being termed an investigation but the fact the governing body has become involved is potentially significant. The FA’s rules include a clause on misconduct which states that: “A participant should at all times act in the best interests of the game and shall not act in any manner which is improper or brings the game into disrepute.” The rules also define a participant as including any “affiliated competition, club, club official” as well as players.

The confidential seven-figure settlement took place in September 2013 after City had employed computer-espionage experts to see if the system had been spied on. They were worried that all their information on transfer targets and scouting reports had been compromised.

As revealed by The Times, the settlement came a year after three former City scouts moved to Liverpool. Two of them were alleged by City to have been involved in accessing their database on the Scout7 system on hundreds of occasions. Michael Edwards, now Liverpool’s sporting director, was also named in the settlement.

The scandal would appear to be the worst case of alleged misbehaviour by one top-flight club to another in the Premier League’s history
The two scouts alleged to have been involved in accessing City’s Scout7 system were Dave Fallows, now Liverpool’s head of recruitment, and Julian Ward, who was Liverpool’s European scouting manager for Spain and Portugal and is now the loan pathways and football partnerships manager.

Among the allegations is that the login of Rob Newman, a Manchester City scout, may have been used illicitly by senior Liverpool staff over an eight-month period from June 2012 to February 2013.

The £1 million settlement was made without Liverpool or the accused individuals accepting any liability or wrongdoing. After the revelations, a Liverpool spokesperson said: “Liverpool FC does not provide any comment on any allegations relating to legal agreements it may or may not have entered into with any other club, organisation or individual.”

Ian Ayre was Liverpool’s managing director at the time and is understood to have been involved in handling the complaint by City. He left the club in 2017 and there is no suggestion that he had any knowledge of any attempts to access City’s scouting database.

Manchester City have declined to comment.

After suspicions were raised, City appointed a forensic computer expert able to carry out an investigation that tracked suspicious logins and IP addresses. Evidence requested by the FA is expected to include any reports produced by the expert, including pages of detail on how City’s Scout7 database was accessed, and from where.

A source close to the Premier League said they were unaware of the settlement at the time. The league, which on Wednesday appointed David Pemsel, the Guardian Media Group’s chief executive to succeed Richard Scudamore in the same role, may be unable to ignore the case if the FA hands over evidence showing a breach of rules.

It is understood that the Premier League has yet to receive a complaint. Its usual approach has been to not intervene if a dispute between two clubs has been resolved between them.

The revelation of the scandal comes with Liverpool and City fighting it out, once more, to be champions of England. Pep Guardiola’s team won the title by a single point last season but Liverpool are ahead by five points after seven games.

After The Times broke the news of the scandal, Damian Collins, MP, the chairman of the digital, culture, media and sport committee, said the Premier League should look into the affair.

Collins, whose committee has covered issues of data breaches, said: “I do believe the Premier League should try to establish exactly what happened in this case and how the clubs came to a settlement.

“It is an important issue if confidential player data was being accessed. There could even be grounds for this being investigated by the Information Commissioner’s Office.”

Reports that Manchester City believed their scouting database may have been hacked first emerged in June 2013, and it was suggested that City had sped up the deals to sign the Brazil midfielder Fernandinho from Shakhtar Donetsk and the Spanish winger Jesús Navas from Seville after discovering evidence of possible breaches of security.

The Scout7 company was bought by the Perform Group in 2017. It is viewed as a world leader in providing a database of detailed player statistics and information. It also provides subscribers with video clips and footage of age-group tournaments that may not be available elsewhere. Users can compile reports on possible targets and share them with other people from their club who also use the system.

The database details where and when tournaments are being played, and has a list of players who are out of contract, which helps clubs looking to strengthen their squad via free transfers, or outside of the transfer window.

After the reports in June 2013 of the alleged access to City’s scouting system, Scout7 issued a statement saying the integrity of its system remained intact.

The statement read: “We understand that the incident is still being investigated but involves use of valid passwords obtained from the club concerned to gain illegal access to a private database. The security or technical integrity of Scout7 systems has not been undermined by this incident.

“Scout7 point out that the security and confidentiality of client’s databases has always been and remains of the utmost importance and protecting club’s private data continues to be an integral feature of our systems.”

Q&A: THE ‘SPYING’ ROW
Hacking into another club’s system, as Liverpool have been alleged to have done, is presumably contrary to Premier League rules?
It certainly appears to be clearly in breach of the Premier League rule that clubs must behave with “utmost good faith” towards each other. The EFL has a similar rule, and it used that to fine Leeds United £200,000 over its own “spygate” scandal last season when their promotion rivals Derby County complained about the Yorkshire club sending someone to watch them training.

In that case, why has the Premier League not already launched an investigation into the reports that Manchester City complained to Liverpool that their database had been hacked?
It is understood that no complaint was received by the Premier League, and its policy is that if any dispute between two clubs has been resolved between them it does not need to get involved. The fact the settlement was agreed in 2013 also means there is a feeling that a lot of time has already passed.

Is there any possible breach of FA rules?
The FA has a catch-all rule in its handbook about misconduct, which states that participants (which include clubs, county associations and officials, as well as players) must not do anything that brings the game into disrepute. It could certainly be argued that hacking into another club’s database is bringing the game into disrepute.

What is the next likely development in this saga?
If City provide full details of its case to the FA, the governing body may feel it has to contact Liverpool for their observations. After that, a decision would have to be taken by the FA as to whether any disciplinary proceedings should be opened.

[Chester Perry]

It has become a much more acceptable part of the game, following on from tragedy and near miss, with enormous media support (like the Independent's mental health in sport week, which was posted in full on this thread), new figures show more players than ever are accessing services to help them deal with mental issues. That can only be a good thing

https://apnews.com/8bb736bc440a40b296eca17157c6e8dd" onclick="window.open(this.href);return false;

[Chester Perry]

@AndyhHolt take on what the games authorities should be doing for Macclesfield now

https://twitter.com/AndyhHolt/status/11 ... 9384127488" onclick="window.open(this.href);return false;

[Chester Perry]

The kind of article I almost subscribed to the Athletic for (not read it but it looks ideal for this thread, given I have made a few posts on this subject)

https://theathletic.com/1264888/2019/10 ... or-brexit/" onclick="window.open(this.href);return false;

anyone who has a subscription) - please consider transcribing

[Chester Perry]

This should be an interesting move - Price of Football/@KieranMaguire are to start a regular podcast as of Tuesday

https://twitter.com/KieranMaguire/statu ... 2116071424" onclick="window.open(this.href);return false;

[Chester Perry]

Earlier in the week (see post #2254 towards the top of this page) KPMG's total squad valuations for the big 5 leagues - here is the next 6 (European)

https://twitter.com/Football_BM/status/ ... 1820681218" onclick="window.open(this.href);return false;

[Chester Perry]

Club fines for various misdemeanours are a pretty standard affair, our club is famous for it's wheal of misfortune, but what kind of fines do the world's biggest club give it's players - Marca has gotten hold of Real Madrid's fine list

https://www.marca.com/en/football/real- ... b4581.html" onclick="window.open(this.href);return false;

[Tricky Trevor]

The article technically says 38k a month and not a week (which is still 10x more than what teammates are making).

I think the only solution is to form one super league of teams and then instituting a salary cap.
American sports is insane money but is has been kept in check partly by a salary cap.

A question not a challenge.
Are any of them going bust?
On another point salary caps are illegal under EU rules but after brexit could it come in?

[Chester Perry]

A question not a challenge.
Are any of them going bust?
On another point salary caps are illegal under EU rules but after brexit could it come in?

The biggest threat under Brexit is tax (which is why agents are now putting net salaries into contracts rather than gross - unitary approaches to a salary cap would go the same way as the transfer window - puts the Premier League at a massive disadvantage (could work down the pyramid)

[Chester Perry]

A story is emerging of another failed bid for Newcastle over the summer (not the one from the middle east)

https://www.chroniclelive.co.uk/sport/f ... m-17033572" onclick="window.open(this.href);return false;

[Chester Perry]

From FC Business Magazine - the Growing Attendance Model for Leagues, Clubs and Countries

http://fcbusiness.co.uk/news/in-focus-g ... model-gam/" onclick="window.open(this.href);return false;

[Chester Perry]

which partners well with this article - The Economics of Fan Engagement: why fan engagement is important

https://www.linkedin.com/pulse/economic ... %2Bg%3D%3D" onclick="window.open(this.href);return false;

[Chester Perry]

Daniel Geey known as @FootballLaw with a blog piece on the Football Broadcasting Deals across the big 5 leagues

https://www.danielgeey.com/post/footbal ... n-leagues/" onclick="window.open(this.href);return false;

[Tricky Trevor]

The biggest threat under Brexit is tax (which is why agents are now putting net salaries into contracts rather than gross - unitary approaches to a salary cap would go the same way as the transfer window - puts the Premier League at a massive disadvantage (could work down the pyramid)

I sort of agree with no individual salary cap but I’d like to see how a first team squad salary cap would work. You could either spread the cap OR buy a couple of superstars and carry a few OR run a smaller squad, on good income, but run the risk of injuries. It would change the dynamic of team management. I’d also allow them to carry over any unspent cap.

[Chester Perry]

The BBC does a bit of Football history - some of you may not be aware of just how scandalous the self righteous behaviour of Juventus was, here is a piece on the Calciopoli scandal

https://www.bbc.co.uk/sport/football/49910626" onclick="window.open(this.href);return false;

their current Chairman Gianni Agnelli certainly carries the same level of arrogance

[Chester Perry]

Some background on David Pemsel the soon to be the Premier Leagues new Chief Executive

https://www.times-series.co.uk/sport/na ... executive/" onclick="window.open(this.href);return false;

and the challenge he faces

https://www.techregister.co.uk/david-pe ... er-league/" onclick="window.open(this.href);return false;

Which is why his business background and achievements are so important to the Premier League

https://www.forbes.com/sites/stevemccas ... 7fdcdd3f4f" onclick="window.open(this.href);return false;

[Chester Perry]

With all the speculation about the future of coaches/managers at a number of Premier League clubs this is timely.

I have posted about the costs of sacking managers a few times, particularly in relation to Chelsea and Conte's legal case (he won) against them (he has also got a new one going against them too).

An article after Real Madrid's woeful Champions League performance against PSG and the problem of sacking Zidane - £70m cost (https://www.dailymail.co.uk/sport/footb ... idane.html" onclick="window.open(this.href);return false;)

One of the fundamental problems in this area is that FIFA has no regulatory framework for such disputes (surprising considering the sums) - this article from LawinSport.com looks at the problem and how FIFA could tackle it - it is quite technical and dry so be warned

Why FIFA needs to provide a specific regulatory framework for football coaches (the difficulties in resolving club-coach disputes and the application of Swiss law)
Published 18 September 2019 By: Josep F. Vandellos Alamilla

One of the primary issues affecting disputes between football coaches and their clubs is the lack of an applicable regulatory framework. The FIFA Regulations on the Status and Transfer of Players (RSTP) do not directly apply to coaches/managers (a point confirmed in recent decisions1 of both the FIFA Players’ Status Committee (PSC) and the Court of Arbitration for Sport (CAS)), and there are no other specific intra-federation regulations governing their status.

In the author’s experience this situation is causing considerable difficulties in terms of consistency and expectations when it comes to trying to resolve club-coach disputes – typically relating to termination of employment – before the PSC and CAS. Part of the problem is that many of the employment contracts expressly refer to disputes being settled “in accordance with FIFA regulations” or “in accordance with the RSTP” (or words to that effect). The parties (and practitioners) therefore presume that they have the backing of a flexible and sport-specific regulatory framework, when in fact they do not. The reality is that Swiss law can end up being applied in default, leading to unexpected and unsatisfactory outcomes for the parties.

Drawing on the author’s experiences, this article examines club-coach disputes before the PSC and CAS (i.e. those with an international dimension) and looks at the current misconceptions regarding the application of FIFA regulations, why Swiss law can be applied in default, and the problems that this can lead to for the parties.

What laws apply in a dispute between club and coach?
The lack of specific regulations relating to football coaches is in the author’s experience making it difficult for practitioners and judicial bodies to establish the applicable material law to apply to a club-coach dispute and to anticipate its consequences.

Many contracts that the author has seen simply refer to disputes being resolved “in accordance with FIFA regulations” (or language to that effect) - but of course, for coaches, there are no regulations. And while certain Articles from the RSTP could theoretically be applied by analogy (and there have been reports of this occurring), in the author’s experience this does not happen in practice. So, what laws do apply when a club-coach employment dispute is brought before the PSC or CAS?

Proceedings before the Players’ Status Committee
Article 2 of FIFA’s Procedural Rules

In FIFA’s regulatory ecosystem, the conflict-of-laws rule is found in Article 2 of the FIFA Rules Governing the Procedures of the PSC and the DRC (“Applicable material law”), which states:

In their application and adjudication of law, the Players’ Status Committee and the DRC shall apply the FIFA Statutes and regulations whilst taking into account all relevant arrangements, laws and/or collective bargaining agreements that exist at national level, as well as the specificity of sport.

The Article therefore instructs the PSC to determine issues on the basis of FIFA’s statutes and regulations (of which none exist to govern coach-related disputes) while simultaneously taking into account any applicable national laws. In the author’s experience, however, the PSC rarely refers to any national law and generally ends up deciding coach-related disputes on the basis of general principles of law (e.g. “pacta sunt servanda” – agreements must be kept) and the well-established jurisprudence in similar matters.

This approach however lends itself to uncertainty, which is further aggravated when the dispute escalates to the CAS.

Appeals to the Court of Arbitration for Sport
Article 57 FIFA Statutes

In relation to an appeal to CAS, Article 57of the FIFA Statutes states:

FIFA recognises the independent Court of Arbitration for Sport (CAS) with headquarters in Lausanne (Switzerland) to resolve disputes between FIFA, member associations, confederations, leagues, clubs, players, officials, intermediaries and licensed match agents.

The provisions of the CAS Code of Sports-related Arbitration shall apply to the proceedings. CAS shall primarily apply the various regulations of FIFA and, additionally, Swiss law.

Those CAS Provisions have in the author’s experience historically generated confusion among panels as to what role Swiss law should play and how it should interact with any other possible choices of domestic laws specified in the contract.

After some conflicting decisions in the past, the most recent CAS jurisprudence (which in the author’s view concurs with the opinions of reputed Swiss scholars) seems to limit the role of Swiss law in the context of football-related disputes to interpreting and completing those matters already contemplated in FIFA’s regulations, rather than extending it to issues that are not foreseen (as would be the case in coach-related disputes). In other words, Swiss law applies in addition to FIFA’s regulations (supplementing their provisions); but not in place of them, (i.e. Swiss law cannot alone be used to cover possible gaps or lacunas).

Article R58 of the CAS Code
In additional to this, the CAS Panel also have to consider the mandatory hierarchy of laws stipulated in Article R58 of the CAS Code, which provides that applicable regulations prevail over any explicit choice of law in the contract:

Law applicable to the merits
The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law that the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision.

Therefore, only when there are no regulations to resort to (as with football coaches) will the dispute be solved in accordance with the law chosen by the parties (when such choice exists); and only in absence of a choice-of-law by the parties, the panel will look at the law of the country in which the federation that has issued the decision is domiciled, (i.e. Swiss law) or alternatively, to the law which it deems appropriate.

Understanding the mechanics of Article R58 is fundamental because it operates as an additional and compulsory source of law upon the parties when they decide to submit to the jurisdiction of the CAS. Further to that, R58 also evidences why and how Swiss law becomes relevant in coach-related disputes when the parties fail to include a governing law clause in their employment contract.

The implications of applying Swiss law to coach-club disputes
The author would like to stress at the outset that, in his experience, the application of Swiss law to club-coach disputes occurs frequently and leads to unsatisfactory results for the parties. The author has had cases in which it has occurred and is aware of others with colleagues, and suspects that most employment contracts between coaches and clubs at top-flight level reference FIFA regulations.

The next step therefore is to consider the implications of applying Swiss law to such disputes (when no other governing law is specified) and examine why it might be unsatisfactory in the context of international football.

For the purposes of this analysis, we will consider a hypothetical regular fixed-term employment contract between a coach and a club with the required international dimension for FIFA’s jurisdiction to apply (Article 22c RSTP). The contract provides for a penalty clause equivalent to two-month salary in favour of each party, payable in case one of them unilaterally breaches the employment contract without just cause. The parties, unaware that the RSTP does not apply to football coaches, generally refer to the RSTP as the applicable material law and fail to specify any other applicable domestic law in their governing law clause.

The CAS, on appeal, is asked to assess the legality of the premature termination by one of the parties and determine the consequences for the party at fault.

As above, the panel will first turn to Article R58 of the CAS Code to assess the applicable law. The Panel will, in the author’s experience, ignore the parties’ references to the RSTP and will not apply its provisions by analogy. Then, as there are no FIFA regulations relating to coaches, and as there is no governing law clause in the contract, the panel will resort to using Swiss law on the basis that:

it is of the view that the parties tacitly agreed to its application; or alternatively,
it concludes that, in lack of regulations and with no agreement between the parties (explicit or tacit), Swiss law applies by default as being the law of the country where FIFA is domiciled.

When Swiss labour law alone is used to assess employment-related disputes, the panel will confront three possible different scenarios:

One of the parties (coach or club) terminates the employment contract with just cause

When the termination of contract occurs with good cause, i.e. as a result of a serious breach by one of the parties, the party at fault will have to repair the damage caused in accordance with article 337 b) par. 1 of the Swiss Code of Obligations

This principle is of “absolute mandatory nature” so cannot, as a general rule, be altered or derogated from. The parties cannot therefore rely on their contractual penalty clause and the party at fault will be required to repair the damages caused to the other party in full, and any other clause in the contract that provides for any other form of compensation will be null and void from the outset.

The amount of damages will be freely determined by the judge in light of the circumstances of each case, under the guidance of the principle of positive interest and in general will consist as follows:

The damage for the employer (club), will consist of the loss (gain manqué/lost profit) and additional expenses incurred by the sudden termination of the employment relationship, to the exception of those expenses the employer (club) would have incurred in any case if the termination would have occurred naturally (e.g. costs associated to finding a new coach). There must necessarily exist a “rapport de causalité” (causal connection) between the termination of the contract and the loss suffered.

The damage for the employee (coach) under a fixed-term contract will consist in the residual value of contract after deducting any income effectively earned or to which he/she voluntarily waived.

According to the jurisprudence of the Tribunal Federal, the coach cannot ask for the indemnity for moral damages foreseen in article 337c par. 3 CO only for cases where the employee terminates the contract without just cause, which therefore, cannot be applied by analogy.

Article 337b par. 2 provides for an exception to the hypothesis in par. 1 (where there is necessarily a termination of contract based on the breach of the other party) and establishes that in all other cases (i.e. where the is no fault by any of the parties; or they both terminate the contract with just cause; or the termination is based on objective reasons i.e. independently of any fault of the parties) the judge will freely appreciate the financial consequences of the termination in account of all the circumstances of the case. This last provision seems to leave the door open for the parties to include - for instance - reciprocal termination clauses whereby any of them would be allowed to walk out of the employment contract in certain situations (e.g. at the end of each contractual season) while being able to anticipate the consequences of such decision by way of liquidated damages or penalties which will be in any case subject to the scrutiny of the judge. Likewise, it gives the arbitrator scope to moderate the damages provided under par. 1 of the same article.

The employer (club) terminates the employment contract without just cause:
In this second scenario, Article 337 c) par. 1 CO applies and, accordingly the employee (coach) would be entitled to damages in the amount he would have earned had the employment relationship ended after the required notice period or on expiry of its agreed duration . As in the previous scenario, such damages will be reduced by any amounts that he/she saved as a result of the termination or earned by performing other work or could have earned if he had not intentionally foregone the opportunity to work.

Article 337 c) par. 1 is of a “relative or semi-mandatory nature”, meaning that their provisions cannot be derogated from to the detriment of the employee (coach). Therefore, a contractual clause preestablishing the amount of damages (e.g. contractual penalty or liquidated damages clause) will only be valid if the amount is more favourable than the situation resulting from the application of the article itself (i.e. above the residual value of contract). Hence, a contractual penalty of two monthly salaries would be null if the residual value of the contract was higher.

Further to that, the employee (coach) who is the victim of a termination without just cause will also benefit, as a general rule, from the additional compensation to be determined equitably by the judge of up to six months provided in par. 3 of Article 337 c) CO. This compensation is due even if the employee has not suffered any damages. According to the doctrine, the nature of this additional amount is double: punitive and compensatory, aiming simultaneously at sanctioning the employer for the termination without just cause, and compensatory, for the possible moral damages suffered by the employee.

The employee (coach) terminates the employment contract without just cause as a result of unjustified absences or abandoning his/her place of work.

In this third and final situation, the panel would necessarily have to apply Article 337 d) CO. The scope of this provision was delineated in depth in Raja Club Athletic de Casablanca v. Baniyas Football Sports Club & Ismail Benlamalem (a dispute involving a player), where the panel reasoned as follows:

“114. According to Swiss law, the individual employment contract is a contract whereby the employee has the obligation to perform work in the employer’s service for either a fixed or indefinite period of time, during which the employer owes him a wage (Article 319 para. 1 CO). On the basis of the principle of loyalty set forth under Article 321a CO, if the employee decides to stop carrying out his work, he must warn his employer without delay in order to safeguard the latter’s legitimate interests. The employer may reasonably expect from an employee who suddenly abandons his position to be immediately informed by the latter of his intentions. In this light, if the employee fails to make contact with his employer for an extended period of time, the employer can, in good faith, assume that he is no longer interested in keeping his position (decisions of the Swiss Federal Court of 14 March 2002, 4C.370/2001, consid. 2a; of 24 August 1999, 4C.143/1999, consid. 2a). If the employee fails to appear at work for a relatively short period of time, he cannot be dismissed for failure to attend work on time before a prior warning and a further episode (ATF 121 V 277, consid. 3.a).”

In that context, the Panel in CAS 2015/A/4161 Valdimir Sliskovic v. Qingdao Zhongneng FC, remarked that the failure of the assistant coach to oversee three training sessions with no previous similar behaviour, and without giving prior notice was to be considered too harsh and irrational.
Instead, if the absence is sufficiently serious and the club can reasonably assume that it is not in the coach’s intention to return and that his decision is final, then club can assume that the contract has ended without having to explicitly dismiss the coach (as happened in the Decision of the Single Judge of the FIFA Player’s Status Committee of 30 January 201233).

When this happens however, the CO establishes that the employer (club) will be entitled to a compensation equal to one-quarter of the employee’s monthly salary. The indemnity of one-quarter of the employee’s monthly salary has the nature of a contractual penalty for which the employer (club) is dispensed of the obligation to prove the existence of the damage. The employee (coach) will be entitled to prove that the damage incurred by the employer (club) is less or even non-existent.

On the other hand, the employer (club) will also be allowed to claim for any additional damages he might have suffered as a result of the illicit termination of the employee (coach), but only to the extent these additional damages can be proven and are not considered expenses the employer (club) would have incurred in any case if the termination would have occurred naturally.

Article 337 d) CO is of an absolutely mandatory nature and therefore, it cannot be altered or derogated in favour of any of the parties, as for instance, Article 17 RSTP allows when the party involved is a football player. It appears that in this scenario, the strict application of Swiss law would necessarily lead to the nullity of any clause stipulating in advance the amount to be paid by the coach in case of an illicit termination of the employment contract due to absenteeism and again, the contractual penalty of two months would remain void.

Comment
The suitability of the Swiss CO must be assessed in the very particular economic context of Switzerland where the labour market is mature and well-functioning. The context of international football is very different and that is why FIFA enacted the RSTP, primarily with the objective to offer an adequate answer to it, by balancing the need for contractual stability on the one hand, and the right to free movement of players on the other hand. There is, from this perspective, no apparent reason why coaches should be left out and - allow me the expression - be “thrown under the bus” of the Swiss CO.

Put simply, the application of Swiss labour law without the filter of the RSTP does not seems fit for purpose as it implies several restrictions upon the parties when compared to football players, especially regarding the flexibility to negotiate the terms of contract and establish the calculation of damages arising from a premature termination. This has a direct impact on the contractual stability of coaches. Hence, whilst football players benefit (within the limits of the law37) from freedom of contract when negotiating the compensation due in case of termination without just cause (as foreseen in Article 17 RSTP, i.e. “unless otherwise provided in the contract”), clubs and coaches do not.

Some practitioners, including myself, have therefore raised doubts as to the appropriateness of the current predominant view (expressed by both the PSC and CAS) that rejects the application of the RSTP to coach-related disputes and have called for a reconsideration aiming at providing international coaches with a clear status that reflects the reality of the industry.

The first reason for this is the existence of a direct and clear instruction in the RSTP for the PSC to decide cases by applying “these regulations” (see Article 25 Para. 6 RSTP and Article 2 of the Procedural rules) which remains void of any meaning with the current interpretation.

The second reason is that the PSC has confirmed the general application of the principle of contractual stability within the framework of organized football and in particular to employment relationships between a football club and a coach38. Such a statement lacks any legal basis or justification outside the dispositions of the RSTP.

The third and final reason is that the direct application of Swiss law is not foreseen in the either the RSTP or the Procedural Rules as the applicable material law and this obliges the PSC to deploy a high degree of creativity when grounding decisions on the basis of general principles of law which do not always have an answer to the multiple legal challenges posed by the parties.

Suggestions
The current regulatory labyrinth for coaches and the fact that they cannot benefit from provisions such as Articles 12bis, 24bis or 17 RSTP is far from desirable and, in the authors view, is a form of discrimination that has no justification and must be urgently addressed given the fundamental role of these professionals in their teams.

Lately, FIFA has made a number of important and far reaching reforms to their regulations (including the RSTP, Disciplinary Code and Code of Ethics) demonstrating a strong commitment towards improving the sport. Why then not take advantage of this praiseworthy wave of reforms and consider also providing coaches with a specific status within the RSTP, that would extend to them some of the rights of which players already benefit.

In the meantime, clubs, coaches and practitioners offering them legal assistance must deploy a high degree of diligence and care, trying to clearly identify the governing law to employment contracts and understand the implications of their choice.

_____________________________________________________________________________________
Copyright notice
Th​is 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.

Author

Josep F. Vandellos Alamilla
Josep is an independent lawyer with extensive experience in international sports law. During the last ten years his practice has entirely focused in representing athletes, clubs, national associations, agents and coaches in front of the different dispute resolution bodies and the Court of Arbitration for Sport in Lausanne (Switzerland). He also advises his clients on a regular basis in contract drafting and negotiations.

[Chester Perry]

TIFO Football and @KieranMaguire on how finally Man United's on field performance is affecting it's income

https://www.youtube.com/watch?v=IQ251-T ... e=youtu.be" onclick="window.open(this.href);return false;

The interesting little tidbit at the end of that is that @KieranMaguire has a book coming out in late November with the obvious title "The Price of Football"

[Chester Perry]

John Nicolson on why we shouldn't keep wanting our clubs to buy another player - fans at all clubs (ours included - this board is mental around transfer windows) are guilty of this

https://www.football365.com/news/chelse ... -your-club" onclick="window.open(this.href);return false;

I know a few of you like the Nic - so this may be of interest - he is on the Outside Write podcast next week talking about the modern game (probably relating to his book)
https://twitter.com/outsidewrite/status ... 7646961664" onclick="window.open(this.href);return false;

he was also on the Football Weekly podcast last week

https://www.theguardian.com/football/au ... ra-podcast" onclick="window.open(this.href);return false;

[Chester Perry]

Posted on the "Labour wants to interfere with the running of football" thread but will post it here to

AgainstLeague3 are running their annual survey of football club ownership - where fans rate their clubs

have a go if you want

http://againstleague3.co.uk/2019/10/06/ ... rvey-open/" onclick="window.open(this.href);return false;

it is now in it's third year
- previous winners Dean Hoyle - Huddersfield (that went sour quickly), Andy Holt - Accrington
- previous losers Duchalet - Charlton, Owen Oyston - Blackpool

[Chester Perry]

The first post on this page talks about bumper increases in sports rights over the next 5 years (I have my doubts) this week the planets single biggest investor in those rights will speak about how online piracy will see their value plummet - the Times with a tale we have been following for some time

Premier League TV finances face ruin due to piracy
Matt Lawton, Chief Sports Correspondent
October 7 2019, 12:01am,
The Times

The head of the world’s largest investor in managed television rights will warn this week that professional sport is facing potential financial ruin because of online piracy.

Yousef Al-Obaidly, the CEO of the Qatar-based beIN Media Group, will give a keynote speech tomorrow at the Leaders Week London 2019 summit, predicting that the value of television rights around the world is about to “drop off a cliff”.

BeIN has a $15 billion (£12.16billion) portfolio of sports rights, broadcasting across ten live HD sports channels from what, in Doha, is the world’s largest sports television studio complex.

But since Saudi Arabia led a blockade of Qatar two years ago over its alleged support of terrorism, beIN Sports has been banned in Saudi Arabia, and customers have been offered alternative beoutQ boxes for a fraction of the price, using stolen beIN output.

A Fifa-funded investigation concluded that “without question” a Saudi Arabia-backed satellite provider had played a vital role in the piracy operation and the impact on beIN has been considerable. Its executives have estimated the cost is already in the billions, forcing it to lay off 18 per cent of staff.

BeIN has decided not to renew its £200 million deal with Formula One and predicts that the situation could have a devastating effect on other rights deals, including the Premier League’s overseas rights packages that are due for renewal in 2022.

This year, the value of the Premier League broadcast rights soared by 8 per cent to £9.2 billion for the 2019-22 cycle, which meant the simultaneous drop in the value of the league’s domestic rights was offset by overseas broadcasters.

However, Al-Obaidly and his colleagues in Doha believe that the Premier League and other major sports organisations have been slow to grasp the seriousness of the situation. “Our industry and rights-holders in particular are still sleep-walking towards a financial precipice,” one observer said.

A subscription for beIN to watch top-flight football costs about £20 a month. For a fee of $90 a year (about £73), the Saudi-backed broadcaster has made it possible to buy an illegal beoutQ box that uses simple satellite technology to broadcast stolen beIN output acquired from a variety of managed sports rights packages. A beoutQ box provides access to 10,000 channels and the Saudis need only one beIN box to steal their output.

Illegal streaming is a major problem. Recent BBC research revealed that 50 per cent of fans in the UK were accessing Premier League streams through unofficial providers online, with more than 30 per cent of them not even realising that it was against the law.

A concern for beIN is the fact that beoutQ boxes and other illegal streaming devices (ISD) are being purchased beyond Saudi borders. Only last week a London retailer was convicted for selling ISDs that provided access to beoutQ. Ammar Al-Silawi was found guilty on two charges of copyright theft and two charges of fraud for selling the devices from his store on London’s Edgware Road.

Last year, there were an estimated 190 billion visits to pirate sites to watch sports and Duncan Walkinshaw, a former Sky executive who is the director of programmes at beIN, echoes Al-Obaidly in predicting a bleak future for sport unless the piracy is stopped. “There will be no value in TV rights,” Walkinshaw told The Times. “Why would anyone pay for it when it is being stolen and given away for nothing?

“For the last two years they’ve stolen every Champions League game we’ve broadcast, and it was the same for all 64 games of last year’s World Cup in Russia.

“We are being mugged every day but this isn’t about some TV station in the desert bleating about losing money. This is about the global impact this could have on sport. Governments as well as governing bodies need to wake up to the seriousness of this situation.”

[Chester Perry]

It is being report by @TheAthleticUK that Dennis Bergkamp, Henrik Larsson, Dirk Kuyt and Ronald Koeman want to buy and run Wycombe Wanderers

[Chester Perry]

Why the Bundesliga are moving to ESPN+ in the US - It is strategic as well as financial - aiming directly at the competition of the Premier League and La Liga

https://www.soccerex.com/insight/articl ... o-espnplus" onclick="window.open(this.href);return false;

[Chester Perry]

We know the finances at Barcelona are pretty bonkers - they generate more revenue than anybody and expect it to go through the billion euro mark this season - their wages are equally enormous, as are their bonuses

https://www.dailymail.co.uk/sport/footb ... r-Cup.html" onclick="window.open(this.href);return false;

that will be more than the total wages (including bonuses) at our club

The mail have a bee in their bonnet about Barca finances - last night they were headlining this article about outstanding transfer debt - which does make your eyes water - especially the amounts on players not at the club currently

https://www.dailymail.co.uk/sport/footb ... tinho.html" onclick="window.open(this.href);return false;

[Chester Perry]

We are used to seeing detailed examinations of finances from English clubs, but don't get them for our continental cousins, @SwissRamble has started something he may regret (if only for the additional workload) - here he dives into Dortmund's 2018/19 accounts

https://twitter.com/SwissRamble/status/ ... 4912754688" onclick="window.open(this.href);return false;

can't wait for the Barcelona/Real Madrid ones

[Royboyclaret]

We know the finances at Barcelona are pretty bonkers - they generate more revenue than anybody and expect it to go through the billion euro mark this season - their wages are equally enormous, as are their bonuses

https://www.dailymail.co.uk/sport/footb ... r-Cup.html" onclick="window.open(this.href);return false;

that will be more than the total wages (including bonuses) at our club

The mail have a bee in their bonnet about Barca finances - last night they were headlining this article about outstanding transfer debt - which does make your eyes water - especially the amounts on players not at the club currently

https://www.dailymail.co.uk/sport/footb ... tinho.html" onclick="window.open(this.href);return false;

Yet another set of extraordinary financial results from the Barcelona camp, the most startling of which is probably the 2019 players' bonus of £82.1million. That figure is almost identical to the total Wage bill here at Burnley in our last set of accounts to Jun'18. I know we've debated this previously on this thread but Barcelona exist on a different financial planet to any other European club, including Manchester United.

[Chester Perry]

mentioned that this speech would happen this week in post #2276 - it happened at the Leaders in (Sports) Business Conference in London today

https://www.football.london/premier-lea ... l-17052296" onclick="window.open(this.href);return false;

EDIT another report on the same with additional detail

https://www.sportbusiness.com/news/bein ... acy-fight/" onclick="window.open(this.href);return false;

[GodIsADeeJay81]

Screenshot_20191008-205843.png (491.47 KiB) Viewed 7939 times

That's impressive and worth showing to fans who are so used to clubs running at a loss that they don't see an issue with it.

Dortmund are proving that debts can be cleared and that's without a TV deal like the PL has.

[Chester Perry]

The European Leagues Association has some interesting proposals for European Club competitions - including limiting leagues to only 3 entrants to the Champions League

https://www.theguardian.com/football/20 ... ague-place" onclick="window.open(this.href);return false;

[Chester Perry]

Gerard Pique (with his business head on) want to create Davis Cup equivalent for football (his business has already revamped that competition) - because players don't have enough games already - pretty sure Infantino will like the idea of this if there is enough money behind it

http://www.sportspromedia.com/news/gera ... pU.twitter" onclick="window.open(this.href);return false;

[Chester Perry]

A look at the legal arguments in the New Balance - Liverpool - Nike case that will be in court later this month

http://www.sportspromedia.com/opinion/l ... B8.twitter" onclick="window.open(this.href);return false;

[Chester Perry]

Fifa's proposed (soon to be confirmed) transfer system reforms have been highlighted in a number of posts on this thread in the last year - here LawinSport.com describes them and looks at what is to follow on

An overview of FIFA’s ‘Phase 2’ reforms – agents, loans and clearing house
Published 08 October 2019 By: Tiran Gunawardena, Rustam Sethna

Stakeholders in world football have witnessed a host of regulatory changes brought about by FIFA, particularly over the last two years.

FIFA’s 6 year cooperation agreement with FIFPro (the World Players’ Union), entered into in November 2017 to improve the governance of professional football was a catalyst for the several changes that have followed.

Most recently, in September 2019, FIFA announced two significant changes, namely:

a mandatory cap on agent commissions, as part of the re-regulation of agent activity; and
the regulation of the loan system.

These changes, along with the proposed clearing house formed the second phase of reform (Phase 2 Reforms) and were discussed in detail by Mr Emilio García Silvero, Chief Legal Officer at FIFA at the International Congress on Football Law held in Madrid in the last week of September 2019 (RFEF Congress).

This article will provide an overview and analysis of the Phase 2 Reforms.

Background
By way of background to the Phase 2 Reforms, the recent suite of changes to the FIFA regulations can be briefly summarised as follows:

In April 2018, FIFA notified amendments to the Regulations on the Status and Transfer of Players (RSTP) which related to (a) the execution of monetary decisions; (b) defining ‘just cause’ to terminating a contract for overdue payables; (c) what constitutes ‘abusive conduct’ by clubs; and (d) clarifying the method of calculating compensation payable under RSTP Article 17. These changes took effect on 1 June 2018.

In September 2018, FIFA engaged with representatives from the European Club Association, World Leagues Forum, FIFPro, Confederations and National Associations (known as the Football Stakeholders Committee (FSC)) to recommend a set of reforms to the FIFA regulatory regime. These were also analysed by the author for LawInSport and included (a) implementing a mandatory domestic electronic transfer and registration systems; (b) the creation of a clearing house to process transfer-related payments; (c) the regulation of agents/ intermediaries; (d) regulation of the loan system; and (e) the introduction of solidarity payments and training compensation at domestic levels.

In November 2018, FIFA notified its member associations of the mandatory implementation of electronic domestic transfer systems (point (a) above).

In July 2019, FIFA announced further changes to the RSTP, among which the most significant was the amended definition of the term ‘third party’ , under which players were no longer considered to be third parties to their own transfer, for the purposes of regulating third party ownership and influence.

Also in July 2019, FIFA announced amendments to its Ethics and Disciplinary Codes.

In September 2019, as noted above the Phase 2 Reforms were announced.
The Phase 2 Reforms will be analysed below.

Agents
The problems associated with FIFA’s decision in 2015 to de-regulate agents has been widely discussed, so will not be repeated here.

The point to note is that, on the premise that the current regime is unfit for purpose, FIFA are back on course to re-introduce a system of mandatory licensing of agents. While concrete regulations are yet to be published (if/when approved by the FIFA council in October 2019), the new regime will require agents to be suitably qualified, by undertaking further education and/or continuing professional development (CPD) courses.

FIFA will also be introducing a dispute resolution system to deal with agent related disputes, and will be establishing a separate department to deal with all agent-related matters.

Conflicts of interest will also be subject to regulation, with dual or multiple representation, as a general rule, prohibited. However, as an exception, a single agent may represent both a player and the buying club in the same transaction.

The most noteworthy (and controversial) amendment is the mandatory cap on agents’ commission. Under the previous (current) regime, FIFA has set out ‘recommended’ (but not mandatory) levels of commission, depending on the party being represented.

The new regulations however, propose the following mandatory caps:
Agent acting for selling club – 10% of >transfer fee;
Agent acting for buying club – 3% of >player’s salary; and
Agent acting for the player – 3% of >player’s salary.

In the event of the only permissible scenario of dual representation (i.e. Agent acting for a player and buying club), the cap on commission will be set at 6% of the >player’s salary – i.e. 3% from each party.

In addition, all commissions will be paid through the centralised FIFA clearing house (see below).

While the Association of Football Agents wasted no time in objecting to the mandatory commission cap on the grounds of restraint of trade and threatening to mount a legal challenge (as they have been for almost a year), the authors can only assume that the FSC have fully anticipated such resistance and the proposed rules have been drafted with that in mind.

This will undoubtedly be a development that the football community will follow with interest.

Loans
The practice of parent clubs ‘warehousing’ several players at ‘loanee’ clubs, with those players having little to no prospect of eventually returning to make an appearance for their parent clubs, is a practice that the FSC has looked to address.

With this in mind, FIFA have devised a system to regulate the international loans of players along the following lines:

Players will be classified into 3 categories, namely: (a) Players over 21; (b) Non-club trained players under 21; and (c) Club-trained players under 21.

Loans involving players over 21 and non-club trained players under 21 (i.e. categories (a) and (b) above) will be regulated in a phased manner over the next 3 seasons with maximum loans restricted to 8 (i.e. 8 in + 8 out) starting from the 2020-21 season and reducing to 6 (i.e. 6 in + 6 out) as of the 2022/23 season.

However, these restrictions will not apply to club-trained players under 21 (i.e. category (c) above).

There will also be a limit of 3 loans (i.e. 3 in + 3 out) between the same clubs irrespective of which category above the player belongs to.

While these provisions apply to the international loan of players, FIFA has given national associations a period of 3 years to implement rules on a loan system which are in line with the above principles.

Clearing House
Mr García Silvero confirmed that a FIFA clearing house is in the process of being established. As outlined previously in the authors’ articles, the FIFA clearing house will centralise all payments associated with transfers such as solidarity contribution, training compensation, transfer fees and agents’ commissions.

The idea is that these payments would be paid into the clearing house, and based on information available from FIFA TMS and player passports, the payments of commission, transfer fees, training compensation and solidarity contributions will all be automatically distributed to the various parties.
As previously stated by one of the authors, “whilst [a clearing house] will not eradicate fraudulent behaviour altogether, having as much information as possible on the identities of the characters involved and the payments in a transfer should, in theory, help FIFA minimise the risk of (i) money going missing; (ii) not being paid; or (iii) otherwise fraudulent behaviour.”

The implementation of a global clearing house on this scale appears to be unprecedented in sports governance and is undoubtedly a huge administrative task for FIFA. However, in the authors’ opinion it is a very welcome change as it will hopefully lead to nullifying numerous issues in the transfer system (most notably the timely and accurate payment of training compensation and solidarity contributions to training clubs).

In July 2019, FIFA announced that the operation of the clearing house would be outsourced to a third party organisation via a formal tender process. At the RFEF Congress, Mr García Silvero stated that FIFA had received numerous bids in their tender process, with the successful bidder, and the implementation of the clearing house, due to be announced in the upcoming months.

Other changes
FIFA legal website
Also announced as one of the amendments to the Disciplinary Code1, FIFA stated its intention to launch a new website on 1 November 2019 – http://www.legal.fifa.com" onclick="window.open(this.href);return false;.

A long overdue step towards greater transparency, the FIFA Legal website is expected to contain copies of:

All decisions rendered by FIFA internal bodies (i.e. the Players’ Status Committee, Dispute Resolution Chamber, Disciplinary Committee and Ethics Committee), with confidential information being redacted; and

Awards rendered by the Court of Arbitration for Sport (CAS) in which FIFA is a party (and where the decision is not confidential).

Given the herculean task of publishing several years of FIFA jurisprudence, Mr García Silvero stated that FIFA will start by publishing decisions issued in 2019 and work their way backwards in publishing historic decisions.

Looking ahead - Phase 3 Reforms
In addition to the landmark reforms discussed above, FIFA announced a third phase of their reform package (Phase 3 Reforms). The authors understand that details about these further reforms should be available in the next few months.

Topics to be addressed in these Phase 3 Reforms will include:
Fiscal reform;
Minors;
Squad sizes; and
Transfer windows.

Further, a previously announced change to the transfer system, in which solidarity contributions will be paid on domestic transfer with an international dimension, will also be introduced in due course.

Concluding thoughts
The (relative) speed at which FIFA regulations and the transfer system have been amended and improved over the last 2 years is remarkable, especially when compared to the preceding years. These Phase 2 Reforms are significant in their own right, yet there are still numerous other significant amendments coming down the pipeline in the next few months. A fascinating time for sports lawyers and academics!

That said, as noted by one of the authors in a previous article, there are some significant issues which will need to be addressed with this phase of changes – not least the mandatory cap on agents’ commission which may well be subject to a legal challenge. Even if the commission cap is ultimately upheld, it remains to be seen whether this cap perversely has the opposite effect to the FSC’s intention to make the industry more transparent (or result in commission payments being driven under the table). It will also be interesting to monitor how the clearing house will run, and the effectiveness of the new agents’ department at FIFA in monitoring and regulating agency activity.

Nevertheless, as Mr García Silvero noted at the RFEF Congress, perhaps the most pleasing aspect of the changes over the last few years is that they are not being imposed in a ‘top down’ manner from FIFA (as used to be the case in the past), but are being agreed to in a collective bargaining process between various football stakeholders (through the FSC).
_______________________________________________________________________________________________________________________________
Copyright notice
Th​is 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.

[Chester Perry]

The things that football clubs have to think about when they take the fruit of the Magic Money Tree part ??

Here LawinSport.com look at the issue of third party medical treatment on players - yes it really is an issue

What can football clubs do when medical treatment given to a player by a third party goes wrong?
Published 30 September 2019 By: Oonagh Webster

In recent years, football Clubs and their medical teams have seen a trend towards players seeking medical or holistic treatments from third party practitioners in circumstances where either the treatment provider is not approved by the Club or the treatment takes place without the knowledge of the Club.

This article will set out the nature of the issue, the potential impact on the Club and possible factors for Clubs to consider to afford themselves some protection.

Scope of the Issue
Over the past year, the author’s firm have been approached by a number of football Clubs who are concerned about medical and holistic treatments being provided to their players by unapproved third party practitioners (Third Parties) such as physiotherapists, personal trainers and masseurs. The most common scenarios are as follows:

Players are receiving treatment outside of their Clubs from Third Parties and in circumstances where the Club and the Club’s medical team are not aware of the treatment.

Players have invited Third Parties to attend the Club premises and the advice or treatment given by the Third Party for the management of the player conflicts with that given by the Club’s own medical team. For example there is a disagreement over the correct recovery plan for a player following an injury or a difference of opinion over whether the player is fit to return to play.

The player and the Club’s medical team agree on the appropriate treatment required but there is a difference of opinion over which medical practitioner should provide the treatment. For example we are aware of scenarios where a player requires an operation but the Club doctors and the player disagree over the identity of the orthopaedic surgeon to carry out the operation.

A topical example is that of Leroy Sane, who is choosing to undergo knee surgery in Austria by Dr Christian Fink, rather than be treated by Dr Ramon Cugat in Barcelona, who is Manchester City’s preferred orthopaedic surgeon.

These scenarios are extremely difficult to manage as of course the player has autonomy and cannot be compelled to undergo treatment he does not consent to, however on the other hand the Club has a significant financial interest in the player, his value as an asset and his ability to continue to play football at a professional level for the Club. It is therefore understandable that a Club will wish to “vet” and approve any Third Party providing treatment to a player. In the case of an orthopaedic surgeon, for example, the Club’s doctors will want to know the surgeon’s success rates and infection rates and be able to liaise with the surgeon as to the player’s aftercare and management of his recovery. Unfortunately we have been advised that sometimes the player insists on undergoing surgery with a surgeon who will not communicate with the Club’s medical team to provide the required information and who the Club therefore cannot endorse to carry out the surgery.

Impact on the Club
In reality the majority of treatment provided by a Third Party to a player is unlikely to result in long or short term injury, albeit the managerial issues of dealing with disputes between players and their Clubs over treatment should not be underestimated. However, where the Third Party is, for example, a physiotherapist or an orthopaedic surgeon then the consequences of sub-standard treatment can be far more serious, which is why these classes of practitioners should be thoroughly vetted to ensure they are appropriately qualified to reduce the risk of an injury to the player.

The “worst case scenario” for a Club is that a player receives sub-standard or negligent treatment from a Third Party leaving the player unable to play for the Club, either temporarily or permanently. This could result in the Club losing millions of pounds including the loss of the value of the player’s contract, the cost of replacing him and lost wages. Even if the Club can prove that the treatment provided by the Third Party was negligent, they are not entitled to an indemnity from the Third Party in respect of their losses as in most circumstances the Third Party will not owe the Club a duty of care in tort or contract.

Whilst most prudent Clubs will have some form of Asset Protection Insurance that may pay out in the event that a player is unable to continue their professional career as a footballer for the Club, there will inevitably be a shortfall or uninsured element that will not be covered and that the Club will have to bear themselves as they cannot seek recovery from the Third Party. Even if the player is only temporarily unable to play, the Club will find themselves responsible for the player’s wages for significant periods, without deriving any benefit from the player during this period. While it is possible to obtain insurance for “temporary total disablement” or “payroll protection”, this is less commonly obtained and will often exclude pre-existing injuries etc.

As an aside, any insurance that the Club holds may contain conditions related to the treatment to be provided to players that could be invalidated if, for example, the Club’s medical team have not signed off on the treatment or the identity of the practitioner. Therefore there is also a risk that the Club could lose whatever insurance cover they do have if the Third Party practitioner providing treatment is not suitably qualified.

The case of West Bromwich Albion Football Club Ltd v El-Safty perfectly demonstrates and confirms that where a player receives negligent treatment or advice, the practitioner is not liable to the Club as there is insufficient proximity between the practitioner and the Club for a duty of care to arise.

In the El-Safty case the Club’s physiotherapist referred the Player to the Surgeon and attended the appointment with him. The Surgeon diagnosed an injury to the Player’s right posterior cruciate ligament and recommended reconstructive surgery. The Player and the physiotherapist discussed and adopted the recommendation. The surgery was paid for by the Club’s medical insurance providers. Unfortunately after undergoing the surgery the Player was unable to play professional football again and it was accepted that the Surgeon’s recommendation for surgery was negligent and that the injury should have been treated conservatively.

In a completely separate action, the Player, Michael Appleton, brought a claim for damages against the Surgeon. Negligence was admitted and the Player was awarded approximately £1.5million.

The Club then attempted to sue the Surgeon for their losses in a separate action, arguing that the Surgeon owed duties to the Club both in contract and in tort. Both at first instance and on appeal the Court held that there was no direct or implied contract between the Surgeon and the Club and the Surgeon owed no duty of care in tort in respect of any foreseeable economic loss to the Club resulting from the negligent treatment.

Mr Justice Royce in his judgement at first instance found that the physiotherapist had referred the Player to the Surgeon in his role as health professional, rather than with an intention to create a contract between the Club and the Surgeon. Therefore there was no intention on the part of the Club to create legal relations directly with the Surgeon.

In relation to whether a duty of care arose in the circumstances, Mr Justice Royce considered the following requirements, as set out in Caparo v Dickman
:
The loss should be reasonably foreseeable;
There should be sufficient proximity between the parties to the claim;
It is fair, just and reasonable to impose the duty of care.

In finding that the Surgeon owed the Club no duty of care, Mr Justice Royce reasoned that there was not sufficient proximity between the Surgeon and the Club. Whilst the Surgeon of course knew that the Player was a valuable asset to the Club, he was not privy to specific details, such as the exact value of the Player or the terms of his contract. Mr Justice Royce pointed out that any surgeon treating a patient from a fairly substantial company under a company health insurance policy will be aware that the patient has a value to the company, however this would not ordinarily give rise to a duty of care owed by the surgeon to the company.

Finally Mr Justice Royce concluded that if there was sufficient proximity between the Surgeon and the Club to give rise to a duty of care it would not be fair, just or reasonable to impose such a duty. He briefly noted that the Surgeon would presumably have to try and ascertain the Player’s value and try and limit his liability in some way, which it would be unreasonable to expect the Surgeon to do. In the Court of Appeal, Lord Justice Rix went further and stressed that the Surgeon did not assume a responsibility to advise the Club and stated his primary concern ought to be the Player’s well-being and not the Club’s financial circumstances. If, Lord Justice Rix stated, the Club had wanted the Surgeon’s advice for the purposes of their own interests “it could have made that plain to him. He would then have been put in a position where he could choose to charge for that advice and the risks of giving it, and/or of disclaiming liability”.

This case shows that the basic premise is that a Third Party providing treatment to a football player is merely providing medical care to a private patient and does not owe a duty of care to a third party (i.e. the Club) not to cause financial loss.

Considerations for the Club
As already outlined, there is a clear risk to a Club if a player undergoes sub-standard or negligent treatment from a Third Party and is then injured and unable to play for any length of time. The likelihood of this happening will be reduced if the player and the Club can adopt a collaborative approach to the player’s treatment plans and ensure that any significant surgery etc is performed by a jointly chosen, suitably qualified practitioner.

Unfortunately this is not always achievable and there is not a clear cut solution to the issue. Some factors that Clubs may find it useful to consider are set out below.

Player’s contract
The Standard Form Premier League Contract entered into between players and Clubs in the Premier League does contain various clauses that a Club could seek to enforce to prevent a player from undergoing controversial or unapproved treatment. Notably one clause states that players agree they will not (except in the case of emergency) arrange or undergo any medical treatment without first giving their Club proper details of the proposed treatment and physician/surgeon and requesting the Club’s consent. The same clause states the Club is not to unreasonably withhold consent.

The difficulty of enforcing this clause is that most Clubs start from the premise “it is your body”. Further the Club will most likely not wish to alienate one of their valuable assets and realistically they are unlikely to want to threaten to terminate the contract and lose their player, attracting significant press coverage and also alienating team mates. There is also a risk that the player will undergo treatment without the Club’s knowledge and therefore the Club will lose any control over the decision making process.

One possibility is for the schedule/annex to the Standard Form Premier League Contract (which can be amplified) to include further detail about what information regarding the proposed treatment and physician/surgeon are required and this reiterated to players upon joining the Club. For example it could be made clear that where an orthopaedic surgery is proposed that as a minimum the Club’s medical team will require details of the surgeon’s success rates, infection rates and insurance cover. This may help prevent internal disputes over whether or not a proposed treatment is reasonable.

Insurance
As touched on above Clubs can, and often do, take out Asset Protection Insurance that usually responds when a player is unable to continue to fulfil their professional obligations to a Club due to accidental death or permanent total disablement or where a player is temporarily disabled. Coverage for these policies is arbitrary and Clubs can choose the sum for which to insure a player, as long as the figure is reasonable and can be justified.

Careful attention should be paid to the wording of the policy, as policies can specifically exclude cover when the injury to a player is caused by negligent medical treatment or arising from treatment for an existing injury etc.

To protect against uninsured losses Clubs should consider giving careful thought to the wording of their policies and the level of coverage insured and calculate such with reference to the player’s contract or transfer value. The flipside could mean an increased premium, however this is likely to pay for itself in multiples if a claim under the policy becomes necessary. Interestingly the Court of Appeal in the El-Safty matter stated that it seems more reasonable to “expect the Club to insure against suffering the financial loss of the kind claimed against Mr El-Safty than to expect him [the surgeon] to insure against additional loss of this kind suffered by someone other than the patient”. This perhaps shows the attitude that Courts will take in the future to any further attempts to hold a practitioner liable to a Club for medical treatment provided to a player.

Of course even with an increased level of coverage there may still be a shortfall between the level of cover and the losses sustained by a Club, however anything that can be done to close this gap will be beneficial to the Club.

Direct Contract with the Third Party
A final option is to try and establish a direct contractual relationship between the Club and any Third Party providing treatment to a player. For example, if a player has a physiotherapist or personal trainer who regularly provides services/treatment to the player, the Club may wish to consider entering into a contract for the provision or services with the physiotherapist/personal trainer. If a contract is established then the Club gains an element of control over the Third Party and can ensure they have adequate qualifications/insurance etc. Furthermore if there is a suggestion of negligence on the part of the Third Party causing harm to the player and subsequent losses to the Club then it will be much easier for the Club to establish a duty owed by the Third Party and attempt to cause the Third Party to indemnify them for any financial losses. The cost of the treatments is unlikely to be an issue for any top level Club.

Although this option may seem the most attractive to a Club it does have a host of difficulties of its own. It is clear from the El-Safty case that any contract between a Club and a Third Party would have to go beyond a simple contract for the payment of fees in order for the Third Party to be held liable to a Club for losses caused by negligent treatment to a player. It would therefore need to include an element of tendering formal advice to the Club or reporting the Club on proposed treatment/surgery. Any Third Party could quite simply refuse to enter into such a contract, refuse to give formal advice to the Club or disclaim liability.

Furthermore, even if a Third Party did agree to enter into a direct contract with a Club and the Club were able to successfully establish a duty owed by the Third Party to a Club, there is no guarantee that the Third Party would have appropriate insurance cover that would respond to the claim or have a limit of indemnity sufficient to cover the Club’s losses.

Finally, the Third Party may be in breach of various ethical codes of practice, including General Medical Council Guidance11, if they were to enter into such a contract as to do so may place them in a position where they have a conflict of interest between the interests of the player and the interests of the Club.

Comment
The issue of players seeking additional treatments outside of their Clubs from unapproved Third Parties is difficult to resolve and likely to continue, particularly in light of players’ increased salaries and pressures to perform.

Whilst there is no fool proof solution, Clubs would be advised to ensure they are adequately insured for their own losses in the event that a player is injured following negligent medical treatment and fully understand the terms and conditions of their insurance so that these are not breached.

To try and prevent players seeking treatment from unapproved Third Parties we would encourage a collaborative approach between the players and Clubs’ medical departments with clear guidelines set down from the start to ensure players understand what is expected of them. Whilst this article has considered the issues from a Club’s perspective, any player of course has a vested interest in remaining fit to play and this shared interest should encourage collaboration.
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[Chester Perry]

These two well intentioned chaps fed at the Magic Money Tree any idea what happened to them?

https://twitter.com/minimal1023/status/ ... 0891455490" onclick="window.open(this.href);return false;

[Chester Perry]

We all know that until Lampard was in the hot seat Chelsea's Academy was little more than a more than a very profitable farm (though one manager tried to shut that down - https://www.dailymail.co.uk/sport/footb ... ademy.html" onclick="window.open(this.href);return false;)

Here TrainingGroundGuru look at just how big the loan operation has become (though as we see above FIFA will soon put a stop to that)

https://trainingground.guru/articles/ch ... ve-seasons" onclick="window.open(this.href);return false;

[AshevilleNCClaret]

I sort of agree with no individual salary cap but I’d like to see how a first team squad salary cap would work. You could either spread the cap OR buy a couple of superstars and carry a few OR run a smaller squad, on good income, but run the risk of injuries. It would change the dynamic of team management. I’d also allow them to carry over any unspent cap.

Professional sports teams dont go bankrupt in the US. Most of the time if an owner is losing money they move the team to another city.
But it is an oversimplification to think it would work for football.
Ive only followed burnley since 2014. The massive amount of money fueled by overseas broadcast rights have allowed me to see games but this same massive money has caused issues within the game

[Chester Perry]

I have posted about the decrepit nature of Old Trafford a few times - today the Mail goes in hard with both feet in the air after the death of a pensioner at the ground

https://www.dailymail.co.uk/sport/footb ... fford.html" onclick="window.open(this.href);return false;

a comment piece

https://www.dailymail.co.uk/sport/footb ... s-rot.html" onclick="window.open(this.href);return false;

how facilities no longer meet FIFA requirements

https://www.dailymail.co.uk/sport/footb ... ament.html" onclick="window.open(this.href);return false;

[Chester Perry]

Aston Villa continuing the share Issue trend - another £54m - probably loans converted to shares - if so that is £215m of debt converted to equity in the 17 months they have owned the club (don't forget they sold the ground to themselves for £56.7m as well in that period) what must the Geordies be thinking?

https://twitter.com/KieranMaguire/statu ... 3912288256" onclick="window.open(this.href);return false;

[Chester Perry]

The latest on Northampton Council's attempts to recover the millions it loaned to Northampton Town FC

https://twitter.com/mattcprecey/status/ ... 2927567874" onclick="window.open(this.href);return false;

EDIT - There is a BBC Article as well

https://www.bbc.co.uk/news/uk-england-n ... e-49986701" onclick="window.open(this.href);return false;

[Chester Perry]

Just when we are being told no want's football rights anymore - it appears that ITV will challenge BT for Champions League rights and even SKY are sniffing around - of course it could be a race to the bottom - I would be surprised if any of them want to pay more than BT are now - From the Times

ITV could bring Champions League back to terrestrial TV
Martyn Ziegler, Chief Sports Reporter - October 9 2019, 5:00pm,

ITV is set to bid to bring the Champions League back to terrestrial TV when Uefa holds its auction of British broadcast rights.

Uefa sent the tender for the 2021-24 rights to interested broadcasters in the UK this week, and it is understood both ITV and Sky are poised to mount a serious challenge to BT Sport which holds the exclusive rights at the moment.

ITV and Sky used to hold the joint rights for the tournament until 2015 when they were blown out of the water by the size of BT’s bid. Since then however, the lack of a terrestrial media partner has meant that Uefa has had to accept much lower public exposure in the UK for its flagship club competition.

The tender document has split the rights up into several different packages, and broadcasters can even bid for a dedicated package to just show the Champions League final. There is also a slight alteration in the time that matches in the early slot will kick off, changing from 5.55pm to 5.45pm.

If ITV is to be successful, it would probably do something similar to the past with a package of one or two live matches on either a Tuesday or Wednesday, with a pay-TV broadcaster having the rights to all the other games. The final has to be shown on free-to-air televisions as it is one of the listed events covered by government legislation.

Uefa may struggle to match the £1.18 billion paid by BT over three years for the 2018-21 rights in the last auction in 2017. The Premier League experienced a fall of 7.5 per cent in the value of its UK rights for 2019-22, and BT has come under pressure to reduce spending.

Relations between Sky and Uefa soured in 2015 after BT won the rights, with the then Sky managing director Barney Francis claiming viewing figures for the Champions League had plummeted since 2010 and accounted for “just 2.5 per cent of Sky Sports viewing”.

Since then there have been concerted attempts to re-build bridges and Sky’s purchase of Nations League rights from Uefa was seen as a sign they were preparing to go head-to-head again with BT for the Champions League.

Uefa’s tender document also lumps together the rights for its new third-tier tournament, the Europa Conference League, with the Europa League. There will be one English representative in the Europa Conference — the winner of next season’s Carabao Cup.

[Chester Perry]

AFC Wimbledon announce that over 5200 people have signed up to their crowdfunding effort to return to plough Lane

https://www.londonnewsonline.co.uk/more ... e-stadium/" onclick="window.open(this.href);return false;

[Chester Perry]

The Price of Football's first ever podcast - The demise of Bury

https://share.transistor.fm/s/cb5acec7" onclick="window.open(this.href);return false;

EDIT These charts make sad reading https://twitter.com/KieranMaguire/statu ... 5407208448" onclick="window.open(this.href);return false;

[Chester Perry]

Could Derby's next swerve of FFP be as simple as a new share issue to new investors

https://www.dcfc.co.uk/news/2019/10/der ... ors-update" onclick="window.open(this.href);return false;

though you wonder how a club could be worth more with it's key assets sold to a third party company

[Chester Perry]

How normal professional (traditional?) football survives - Partick Thistle publishes detailed accounts for 2018/19, a season that saw them drop to the 3rd tier of Scottish football - these financials are similar to a lower league 2 team in England that would not produce anything so transparent

https://twitter.com/KieranMaguire/statu ... 8588535809" onclick="window.open(this.href);return false;

[Chester Perry]

An article on the fast rising value of sports data rights - yes it is to do with betting - is this another revenue stream for the Premier League?

https://www.sportbusiness.com/2019/10/f ... live-data/" onclick="window.open(this.href);return false;