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Sports Law and Management
De Montfort University, Bedford
Copyright © 2000 David McArdle.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
The European Court of Justice's decision in Belgian Football Association v Bosman  All ER (EC) 97 prevents clubs from demanding 'transfer fees' for out-of-contract players who move from one club to another and prevents the imposition of restrictions on the number of 'foreigners' who can play for a particular club. Even the legality of transfer fees demanded in respect of players who are still under contract at one club when they move to another is open to question. They remain lawful for the time being, if only because the legality of such deals was not considered by the European Court in Bosman. The main purpose of this paper is to show that, at least so far as English football is concerned, the most damaging effects of Bosman could have been avoided notwithstanding the myopia and self-interest of those who run the game.
English professional football's relationship with the courts predates the European Court of Justice's decision in Belgian Football Association v Bosman  All ER (EC) 97 by one hundred years. Bosman, notoriously, prevents clubs from demanding 'transfer fees' for out-of-contract players who move from one club to another and prevents the imposition of restrictions on the number of 'foreigners' who can play for a particular club. The Bosman ruling itself, and its consequences, are outside the scope of this paper (see Morrow et al 1996 and McArdle 2000 for discussion). The author's fear is that many smaller professional clubs will no longer exist in twenty years time, partly as a consequence of Bosman, although it should be said that many others eschew this Doomsday Scenario and assert that such fears are "almost certainly unfounded" (Morrow et al 1996, p 902). Whatever the long-term ramifications, it is undoubtedly the case that never again will small clubs' main source of revenue - the transfer fees paid by bigger clubs for the smaller ones' best players - be available in respect of players whose contract with the smaller club has expired. Those players are now free to move to whichever club offers them the best personal deal (in terms of salary and duration of contract), and their previous club receives not a penny from the transaction. Even the legality of transfer fees demanded in respect of players who are still under contract at one club when they move to another is open to question. They remain lawful for the time being, if only because the legality of such deals was not considered by the European Court in Bosman. However, whether the European or domestic courts would enforce a contract for personal services in respect of a player under contract who sought to move from one club to another without his first club's permission and without the payment of a fee is a matter of much dispute. (For contrasting views, see McCormick 1999) and O'Leary and Caiger 2000). On balance, the author shares McCutcheon's opinion that "if a contract satisfies the basic requirements of fairness which the law of equity mandates, legal policy should tend towards its enforcement by negative injunction" (McCutcheon 1997, p 100).
The European Commission recently suggested that Bosman's detrimental effects on smaller clubs could be ameliorated if the football industry compelled larger clubs to give the minnows more financial support (Chaudhary and Thomas 1999). This is an attractive proposition which has far more validity than the suggestion that football is 'special' and should be granted an exemption from the European Community's competition laws - a suggestion which is a non-starter so far as the Commission is concerned (Pons 1999). Similarly, the introduction of mandatory salary caps would be open to legal challenge on the basis of restraint of trade (Boyes 2000), and in any event salary caps would do nothing to safeguard the future of the minnows. Anyway, if governing bodies sought to compel, or even cajole, the Manchester Uniteds of this world into re-distributing some of their wealth to the likes of Hartlepool and Chesterfield, the only consequence would be to hasten the introduction of a European Super League. The Commission's suggestion overlooks the inescapable fact that, throughout the history of professional football, successful outfits have been more concerned with their own financial best interests rather than with safeguarding the future of the sport. That is not going to change. It is football's curse and is not the European Commission's problem.
However, the main purpose of this paper is to show that, at least so far as English football is concerned, the most damaging effects of Bosman could have been avoided notwithstanding the myopia and self-interest of those who run the game. The lawfulness of the transfer system had been argued before the English courts in three cases - Radford v Campbell (1890) 6 TLR 488, Kingaby v Aston Villa Football Club (1912) Times, 28 March and Eastham v Newcastle United FC  3 All ER 139. Radford was heard shortly after the Football association's reluctant sanctioning of professionalism but before the payment of transfer fees became the norm. This case was actually decided in the player's favour; Nottingham Forest being refused an injunction to prevent the player signing for Blackburn Rovers on the ground that its application had been motivated by malice. However, Kingaby and Eastham both show how successful clubs were able to use the transfer system for their own ends, to the detriment of the players and clubs with less financial muscle. Kingaby lost because his counsel eschewed an obvious legal ploy in favour of a far more risky policy that must have made sense in the wake of Radford, while Eastham resulted in only limited reforms to the domestic transfer system.
The paper will also show that a challenge to the transfer system on the basis of the European Union laws on competition and freedom of movement had been on the cards for more than twenty years before Bosman. Shortly after the United Kingdom joined the EEC in 1973, the European Court of Justice's rulings in Walrave and Koch v UCI  1 CMLR 320 and Dona v Mantero  2 CMLR 578 confirmed that "professional football (was) on a collision course with the Treaty of Rome" (Weatherill 1989). Despite these warnings, the game's governing bodies in England and Wales (along with most of their counterparts throughout Europe) refused to countenance changes to their employment practices beyond the limited changes that had been forced upon them by Eastham. It will also show that professional clubs in Scotland, immune as they were to the ramifications of Eastham, continued to use Draconian employment practices well into the 1990s.
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"Professional football was deformed at birth. The game was never honourable, never decent, never rational or just. Class was the root of all professional football's evils; those who played the game for money, the heroes who drew the crowds, were working class; those who administered the game, the directors and football club shareholders, were, as the greatest player of the age, Billy Meredith, contemptuously described them, 'little shopkeepers who governed our destiny'" (Dunphy 1991, p 7).
The various folk games of 'football' that were being played in England and the rest of Europe by the fourteenth century are generally accepted as the forerunners of the modern version, although whether the origins of contemporary football can be traced even further back remains a matter of debate. The existence of a direct link with the Roman games of harpastum, paganica and follis is regarded as "intrinsically improbable" (Russell 1997, p 6), although it is perfectly possible that the roots of the game predate the signing of the Magna Carta in 1215. Village feasts, religious festivals and holidays provided suitably important occasions on which these game could be played. Teams of up to 1,000 men and women were commonplace. But physical violence was the norm, and although these folk games were not merely ill disciplined carnivals or simply an excuse for a punch-up, by the nineteenth century they were extinct or under threat from the social and economic forces that reshaped leisure during the industrial revolution (Birley 1993). With a few isolated exceptions, the great mass-participation games of football did not survive beyond the 1840s.
Notwithstanding the decline of these large-scale events, there remained some level of participation in small-sided, spontaneous and informal games of street football among working class men who lived and worked in the burgeoning industrial towns and cities. While it is impossible to ascertain just how many of these street games were played, and the number of people involved in them, a survey of popular recreations in the industrialised English Midlands in the middle of the nineteenth century noted the continuing and widespread existence of 'foot ball' (Russell 1997, p 8). In any event, participation was sufficiently widespread to excite the disapproval of Parliament, for the Highways Act, 1835 provided for a fine of 40 shillings for those convicted of playing the game on the Highways. It was also sufficiently widespread to provide a base upon which to build during the 1870s and 1880s, when public school-educated men tried to encourage working-class men to participate in their more 'civilised' version of the game - sides of equal numbers, playing to agreed rules within a defined space and with some regulation of the degree of violence or force that could be used (Elias and Dunning 1996).
The law may have been used on occasion to clamp down on 'folk football', but other legal developments were of no little significance in the 'modern' game's expansion into the lives of working class men. Saturday half-holidays became the norm in most industries; in 1874, engineers and builders secured a maximum nine-hour day; the Factory Act, 1875 provided for a 56-hour working week for those working in the cotton industry. The shorter working week heralded unprecedented opportunities to play the game, and the improved rail system, rising literacy levels, the mass media and the penny post have all been cited as factors that contributed to the astonishing development of football among the working classes (Walvin 1994). However, perhaps the single most significant factor in the expansion of the game was the passing of the Education Act, 1870. This resulted in an expansion of the number of working class pupils who were admitted to elementary schools and a concomitant expansion in the number of teacher training colleges, which were necessary to ensure the requisite number of qualified individuals to teach in them. Most teacher training colleges had Association football teams, and "their diplomates were often the mainstay of early clubs, especially in industrial areas" (Birley 1995, p 268).
This expansion of the game into working class communities heralded a shift in the balance of power on the pitch. The dominant clubs ceased to be Old Boys' sides from the South of England, and from the early 1880s factory- or industry-based teams in the north of the country became far more successful. However, those in charge of the Football Association continued to be men whose social standing as far higher than that of the best players. Their perceptions of football, how it should be played and who should be allowed to play it, were still based on the Public School model. Only in 1885 did the Association consent to working class men being paid for playing; and even then its acceptance of professionalism was contingent upon it being able to determine whom professionals could play and how much they could earn. Their player registration scheme, although legal in itself, was the model for subsequent, unlawful restrictions on players' employment rights that remained in place until the Bosman ruling.
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By 1885, the Northern clubs who attracted the biggest crowds and had the best playing records (Aston Villa, Notts County and Blackburn Rovers) were making secret payments to the players who represented them. 'Professional football' was a stark reality but the Football Association refused to acknowledge its existence, let alone sanction the practice. Consequently, clubs continued to make payments routine, underhand payments to their players in the form of 'boot money', where wads of cash would be placed in their boots before a game. Alternatively, players would be found employment with a sympathetic local employer - ideally, the club chairman or a club director - who would not be perturbed if he failed to perform on the factory floor so long as he performed on a Saturday afternoon (Russell 1997).
The Football Association's eventual, reluctant, decision to allow professionalism merely represented their acceptance of the inevitable, but its recognition of professional players was accompanied by the introduction of terms and conditions which allowed it to closely regulate those players' activities. The Association allowed professionals to play on condition that they would not be allowed to captain a side or hold other positions of influence within the game. Furthermore, the Association introduced a regulatory system that allowed it to oversee the transfer of professional players from one club to another. Players would have to re-register with their club every year and could not play for any club other than the one they were registered with. They were free to join another club at the end of each season - even if their old club did not want to let them go - but players could not change clubs during a season unless they had the permission of the club that held their registration. They also needed the permission of the Football Association.
The limited degree of freedom of movement that this system allowed was enough to prevent it being an unlawful restraint of trade, and it soon became a fundamental part of the game's structure. Indeed, so successful was it in regulating professionalism that, shortly after the foundation of the English Football League in 1888, the League authorities introduced a new player registration scheme ostensibly designed to safeguard the interests of all League clubs. The difference was that this new scheme involved the use of more stringent - and quite probably unlawful - restrictions on player movement.
But football had its first brush with English law less than two years after the introduction of the League and before the introduction of this League's registration system. In Radford v Campbell Nottingham Forest sought an injunction to prevent Campbell from playing for Blackburn Rovers. In March 1890, Campbell signed a contract committing him to play for Nottingham Forest in the 1890/91 season. However, before that season started, he signed another contract with Blackburn Rovers. At that time, Rovers were the most successful and prestigious club in the country, being founder members of the English League in 1888 (which Forest did not join until 1892) and winners of the F.A. Cup on five occasions between 1884 and 1891. As mentioned above, Rovers had been paying their players long before the Football Association agreed to professionalism, and Campbell received the princely sum of £4 10s per week from them.
The application for an injunction was refused at first instance and Forest appealed to the Court of Appeal, where the case was heard by no less a personage than the Master of the Rolls, Lord Esher. The short report of his judgment is worth quoting in full:
"The Master of the Rolls said that this jurisdiction of the Court must depend upon the circumstances of every case. It was not in every case in which a man was about to break his contract that an injunction should be granted restraining him from doing so. What was there at stake in the present case? There was no question of character or of property except that it was said there would be a diminution in gate-money. But the real point was the pride of the club; they wanted to win their games, and in order to do so they had engaged these professionals. Ought the solemn machinery of the Court in granting an injunction to be invoked in order to satisfy their pride in winning their matches? If the defendant broke his agreement an action would lie against him, and it might be even that an action would lie against the other club for enticing him to do so. But it was unnecessary to decide that now; all that needed to be said was that Mr. Justice North (at first instance) was right and that this was not a proper case for granting an injunction" ((1890) 6 TLR 488).
Lord Esher's contempt for the sport, and particularly for professionalism and the clubs' obsession with "winning their games", drips from the judgment; the Court ought not to involve itself with something so trivial as football. And although it is probably impossible to know for certain, it surely must have been the case that Herbert Kingaby's counsel was mindful of Radford when he embarked upon his disastrous courtroom tactics some twenty years later.
But Forests' ambitions were no different to those of many other clubs who aspired to the heights that the likes of Rovers had reached. They had turned professional in 1889 and Campbell must have been a quality player in order to attract such a huge salary from Blackburn. Aside from having their best players poached, Forests' main concern was the success of near rivals Notts County. By the late 1880s, both clubs were playing in the Trent Bridge area of the city (Forest shared the County Cricket Ground) and in 1890/91 while Campbell was playing for Blackburn and Forest were playing in regional competitions, County had their best-ever season and finished third in the League. However, Forest were admitted as founder members of the new Second Division at the start of the 1891/92 season; expansion of the League being a consequence of the professional clubs realising that their interests were best served by giving more clubs the opportunity to play at the top level. Similarly, they appreciated the financial benefits that lay in giving more fans the opportunity to pay for the privilege of watching the best clubs and the best players.
These clubs also appreciated the need to remove the imbalance of power that existed within the game, usually between clubs based in large cities and those located in the smaller towns. If the small teams simply could not match the crowds of the big ones (the clubs argued) the big teams would dominate the competition as a consequence of being able to pay the highest salaries and, like Blackburn Rovers, recruit all the best players. If this were not prevented, it would cause a decline in interest and support for the smaller clubs and, quite possibly, their extinction. Accordingly, the League's officials decided that restrictions had to be placed on richer clubs' ability to tempt players into joining them from other clubs. This was deemed necessary in order to ensure an equal spread of talent and to keep the League competitive, thereby maintaining spectators' interest in all clubs. In order to achieve this, the League's officials filched the registration scheme through which the Football Association had regulated professionalism since 1885 and adapted it to suit their own requirements. Accordingly, from the start of the 1893/94 season, a player had to be registered with the club he intended playing for and once he had registered, he could play for no other club. One can only speculate whether the player registration provisions would have developed differently if Radford had been decided in Forest's favour.
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In many respects, the League's registration scheme was little different to that instigated by the Football Association. The one crucial difference was that, if a player wanted to move clubs at the end of the season, he would need his old club's permission before being able to take up that new offer of employment. This provision applied if the player had refused to sign a new contract with his old club, and even if that club had no intention of playing him - or of paying him a salary - in the forthcoming season. Consequently, a club could in principle refuse to release a player's registration, and thereby prevent him from being able to play for another English League side. A player in such a position would be obliged to seek employment with a club in the (English) Southern League or (from 1890) the Scottish League, where the standard of play and the wages were lower but the clubs were not bound by the English league's punitive registration provisions. For most players, the alternative option was to quit the game altogether and return from whence they came - to full time employment in the mines, the factories, or the cotton industry. The potential harshness of the player registration system was ameliorated by the fact that clubs, who were always seeking to raise money to supplement gate receipts, quickly realised that they could forfeit a player's registration in return for the payment of 'compensation' by the club who wanted to sign him. It was argued that this 'transfer fee' provided further protection for the smaller clubs because they could keep their best players until financial constraints made it prudent to sell them to larger clubs. If a player's registration was transferred and the selling club compensated, it would hope to receive enough money to replace the player and pay any outstanding debts. The fact remained, though, that under the League's rules a vindictive club could bring a player's career to a premature end simply by adhering to the letter of the Registration Scheme. Not all clubs badly needed the cash that transferring the registration of an average player would bring, and certainly there were occasions when a club's refusal to release a player was motivated by nothing other than malice. Aston Villa's treatment of Herbert Kingaby was one such occasion.
But Kingaby needs to be considered within the context of two other significant developments that occurred within professional football around the turn of the century - namely, the move towards the imposition of a maximum wage for players and the establishment of the professional players' trade union. Shortly after the inauguration of the retain-and-transfer system, various clubs had started to lobby for the introduction of a £4 per week maximum wage that would operate alongside that scheme. Clubs needed to reduce their costs after undertaking expensive ground redevelopment during the early 1890s, and said that placing limits on the amount that could be paid in players' wages would help achieve that. Although a maximum wage had obvious benefits to the smaller clubs, the richer ones were happy to pay whatever was needed to secure the services of the best players. Bigger clubs would also disregard the provisions on players' signing-on fees. The League's maximum permitted signing-on fee of £10 was routinely but covertly ignored by the most successful sides, who would pay as much as £75 for the right man (Birley, 1995: 37), and in 1893 a proposal at the League's Annual General Meeting to introduce a maximum wage was defeated.
Those in favour of a maximum wage continued to lobby other clubs, and the campaign grew stronger as the League's domination by a handful of clubs continued (in the thirteen seasons between the founding of the League in 1888 and the imposition of the maximum wage in 1901, three clubs won the League Championship ten times between them). Most players gave little thought to the maximum wage - the mooted figure was comfortably in excess of what the majority could ever hope to earn - but they were far more concerned when, in 1897, the Scottish League banned its member clubs from 'poaching' disaffected English League players. Thus faced with the removal of one of the few opportunities that players had to continue their careers outside the English League, attempts were made to form a players' Union; but membership never rose above 50% of all players and it foundered in the face of general apathy. In 1901 there was another vote on the maximum wage issue, and given the apathy among the workforce, clubs were able to push through its introduction at the rate of £4 per week.
It was not until 1907 that players were finally able to establish a credible Union. That an impressively large number of players were willing to support unionisation on this occasion was due, not to a new found radicalism among the rank-and-file, but with those players' consternation at the authorities' treatment of one of their number, Billy Meredith of Manchester City and Wales. Meredith was the first player to 'blow the whistle' on corruption within the game after he banned for eighteen months in 1905 for attempting to bribe opponents into throwing matches. His club, which had fully supported Meredith's corrupt endeavours, denied any involvement in these attempts and left the player to face punishment alone. In pique, the Welsh Wizard revealed details of City's illegal signing-on payments to new players, club officials' role in bribing opponents and their persistent violations of the rules on the maximum wage and player bonuses. Meredith's revelations resulted in all the players from the club's 1903 Football Association cup-winning side being suspended from the game. They were also banned from playing for Manchester City again and certain club directors were banned sine die. Meredith joined near neighbours (and arch rivals) Manchester United once his ban had been served, but his experiences had made him a bitter man and his was to be a pivotal role in the new Union. His fellow professionals, mindful that Meredith's only mistake was to allow himself to get caught, came to appreciate the virtue of safety in numbers and enthusiastically supported his initiative. However, the Union's inception heralded a period of conflict between players and management over the maximum wage and, more pertinently, over the retain-and-transfer provisions. This conflict culminated in Kingaby v Aston Villa Football Club.
In the early part of his playing career, Herbert Kingaby had been the archetypal journeyman professional footballer. He had played for a London side, Clapton Orient, in the Southern League while holding down a full-time job which restricted his availability to matches played on Saturdays and on public holidays. In 1906, he was sold to Aston Villa for £300 and was paid the maximum wage of £4 a week. Two months after the purchase, Aston Villa had second thoughts on the player's ability and offered to sell him back to Clapton for a mere £150. However, cash-strapped Clapton could not afford him; no other club was interested in signing him and Aston Villa - one of the richest and, arguably, the most successful club in the country - was not willing to lose £300 by allowing him to move without receiving a fee.
Kingaby's main obstacle to freedom of movement was the fact that the vagaries of the retain-and-transfer system allowed Villa to keep him on their retained players' list even though they had no intention of giving him a new contract after his one-year deal had expired. Kingaby could not join another League club once he had been placed on Villa's retained list, but as he was no longer contracted to them, he was not receiving a salary. Faced with the abrupt termination of his English League career - no contract, no wages and unable to join another English League club - he joined Fulham, which was a Southern League side and therefore not bound by the English League's retain-and-transfer regulations.
Until now, Kingaby's travails had been little different to those of other players who had joined Southern League clubs because their previous employers had neither offered them a new contract nor allowed them to join another English League team. But his case became more complex in the summer of 1910 when he joined nearby Leyton Orient,(1) who played in the second division of the English League. Shortly after Kingaby's transfer, the Southern League and the English League finally reached an agreement over recognition of the latter's player registration and transfer systems. This agreement prevented disaffected Football League players from joining Southern League clubs, but, more significantly for Kingaby, under the complicated terms of that agreement he was re-registered as an Aston Villa player and was unable to play for Leyton or any other team unless Villa agreed to transfer him. Villa did agree to transfer him - subject now to the payment of a transfer fee of £350, which was way beyond Leyton's budget, and far in excess of any objective valuation of this ageing player's worth.
Faced once again with the immanent termination of his professional career, Kingaby sought legal redress against Aston Villa, contending the club's actions were an unlawful restraint of trade. He sought assistance from the Union when the legal bills began to mount, and given that the case appeared to be a strong one and Kingaby had hitherto conducted himself impeccably in his dealings with the League and his various clubs, they agreed to provide financial and other support. At the very least, there was a prima facie argument that the system was an unlawful restraint of trade following the decisions in Mitchel v Reynolds (1711) 1 PWms. 181and Leather Cloth Co v Larsont (1869) L R 9 Eq. 345. The Union had obtained legal advice to the effect that Kingaby's case was a strong one. At trial, though, counsel for the player made a gross and inexplicable error of judgement by concentrating on Aston Villa's allegedly malicious use of the transfer system, making no reference to the law on restrictive practices as developed in those earlier cases. It seems (the pleadings in Kingaby were briefly referred to in Eastham) that counsel, almost certainly mindful of Radford, simply contended the club had acted maliciously and had used retain-and-transfer to stymie Kingaby's career in an act of revenge. He sought damages for breach of contract, conspiracy and maliciously procuring breaches of contract, and an injunction.
The 'malice' argument proved a disastrous ploy. Because counsel had failed to challenge the fundamental legality of the retain-and-transfer system, the case proceeded on the presumption that the transfer system was lawful and the club had acted lawfully in seeking a transfer fee for the player. Under those circumstances, Aston Villa's motives were irrelevant because even the most malicious or capricious of motives could not render a lawful act unlawful. The club had no case to answer, said Lawrence, J, who withdrew the case from the jury and confirmed that there were no grounds for challenging either the 'malicious' transfer fee or the transfer system itself as being a breach of the player's contract of employment. In Kingaby, "(n)o tort against the plaintiff had been committed and there was no evidence of Malice" (Eastham v Newcastle United  3 All ER 139, 156 per Wilberforce, J. Costs were awarded against the Union, resulting in its near-bankruptcy and more ruinously adverse publicity
The Union's fortunes did not improve after the War, for although membership swelled from 300 in 1915 to well over 1000 by 1920 this did not herald a new era of radicalism among the rank-and-file. Widespread unemployment heralded declines in attendance at a time when many clubs had, once again, committed themselves to expensive ground improvement programmes in the expectation that the post-war spectator boom would continue indefinitely. Inevitably, this caused financial difficulties at many clubs (Russell 1997, pp 76-107). But those clubs believed their problems were due to players' excessive wages rather than over-expansion. In the spring of 1922, they persuaded the League authorities to arbitrarily impose a £1 cut to the maximum wage (£9 a week at that time) and force clubs to reduce the wages of players who were on less than the maximum (Harding, 1989: 158). Players were legally entitled to be paid at the rate agreed between them and their employers, but in the wake of Kingaby the game's authorities believed they could disregard the law of the land and arbitrarily impose new terms into their contracts.
On this occasion, though, the authorities were proved wrong and the Union achieved a significant victory. In an unreported case from May 1923, Henry Leddy of Chesterfield FC established players' right to be paid at the contracted rate notwithstanding the Football League's attempt to unilaterally alter the terms of contracts agreed between players and their clubs by lowering the maximum wage to £3 per week. However, the principle of the maximum wage was unaffected by this ruling and it remained in place for almost forty years after Leddy's case. Retain-and-transfer remained too: players' careers could still be stymied if clubs refused to release them when another club made an offer, and George Eastham's courtroom challenge to the legality of that system was even further away.
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In the years immediately preceding Eastham, the dual system of the maximum wage and retain-and-transfer had become increasingly discredited. There were numerous instances of financial irregularity at high-profile clubs where players had been paid 'boot money' and received other perks in contravention of the maximum wage provisions, and periodically the Union represented players who faced suspension over receipt of such payments. In 1957, it fought a bitter, protracted but much-publicised action on behalf of players from Sunderland FC (Harding 1991, pp 144-151), and each allegation of illegal payments further undermined the credibility of the maximum wage. The Union continued to lobby for its abolition, and in 1961, faced with the real possibility of a players' strike, the League finally agreed. As soon as the maximum wage was abolished, Johnny Hayes of Fulham FC and England was offered a new contract on a salary of £100 per week. This was five times more than the previous maximum and seven times more than the then average manual wage (Russell 1997, p 150). Retain-and-transfer was sacrosanct, though, and the League would contemplate no amendment to it.
It was at this stage that George Eastham entered the fray. In April 1960, this Newcastle United player had made the first of several unsuccessful requests to be released from his contract with that club. Disheartened, Eastham quit the game and took a job outside football, but in October 1961 the union approached him with a view to his being a test case on the legality of retain-and-transfer. He agreed, and even though Newcastle relented and granted him a transfer to Arsenal for a fee of £47,000 in November of that year Eastham, like Kingaby, agreed to go ahead with the case.
The contractual straitjacket under which George Eastham laboured had changed little since the era of Kingaby himself. It was still the case that most players were employed on yearly contracts, running from 1 July to 30 June. As the one-year contract neared its end, one of four scenarios would come into play (Greenfield and Osborn 1998, p 35):-
- The player could re-register for the same club at any time between April 1st and the first Saturday in May. In effect, the contract was simply renewed.
- The club could retain the player on less favourable terms by serving a notice between 1st May and 1st June giving details of the terms it was offering. If the Football Association considered the offer to be too low it could refuse the retention, but if it felt the terms were reasonable, the player could not sign for any other club. Players were allowed to petition the Football Association with their reasons for wanting to move to another club, but if the Association refused to intervene clubs could retain a player indefinitely.
- The player could be placed on the transfer list at a fee fixed by the club.
- If the club did not want to keep the player and did not seek a fee for him, it could release him and he would be free to conduct negotiations with other clubs at any time from the end of June.
At the end of each season, the details of all transfer-listed players and the fee required in respect of them would be sent to the League. The complete list of all the players who were available for transfer would then be circulated to all the clubs. A player's registration could be transferred once the fee had been paid (or a lesser one negotiated), but so long as a player was on the transfer list the club was under no obligation to pay him a wage. In these circumstances, a player was actually in a worse position than his nineteenth century predecessors had been. He was not entitled to payment but, equally, was not free to join a new club. Unlike Kingaby, he could not move to another League because retain-and-transfer now operated in virtually every country where the game was played professionally, and most Leagues respected the others' rules on player movement. For instance, In 1950, Neil Franklin of Stoke City and England had been persuaded to break his contract and join Bogota of Colombia. Unable to settle, Franklin returned to England and was banned for a year for breach of contract. He never played for the national side again (Harding 1991, p 250). The only alternative was to leave the professional game altogether, which was the course of action that Eastham had taken originally.
Eastham v Newcastle United was heard in the Chancery Division over the summer of 1963, and Wilberforce, J found in favour of the player by ruling that the combined retain-and-transfer system was an unreasonable restraint of trade. His judgement amounted to a scathing indictment of the retention element of the transfer system, which the judge regarded as going far beyond what was necessary to ensure clubs were able to protect their legitimate interests.
The League had relied on the arguments that had been used to justify retain-and-transfer when it was first introduced in the 1890s - and that would be relied on again, for the most part, in Belgian Football Association v Bosman. It argued that the retain-and-transfer system prevented the bigger clubs from taking all the best players, and consequently helped maintain the element of competition and spectator interest. Wilberforce, J concluded that if the League was genuinely concerned with giving clubs the power to extend players' contracts, it would not have used a mechanism which did not come into play until after a player's employment had been terminated in order to do so. Simply giving a player a retention notice did not mean he was still an employee. The player had to take further action - namely, he had to sign whatever new contract the club offered him - before the club would start paying his wages again. He stated:
"The retention provisions differ from an option to extend the contract which, once exercised, causes the employee to continue to be an employee" ( 3 All ER 139, 147).
A further criticism was that the system prevented players from obtaining employment with a different club at a time when they were no longer employees of their old club and were not being paid by it. Wilberforce, J further stated:
"If a League player is merely on the transfer list, he may escape, either by persuading the management committee to give him a free transfer, or by going to a club outside the League. He cannot so escape if he is on the retain list. In fact, by placing a player on the retain list - possibly at a reduced wage - the club with which he is registered can prevent him from signing on with any other club. ... Any system that interfered with the player's freedom to seek other employment at a time when he was not actually being employed by another club would seem to me to operate substantially in restraint of trade" (ibid).
A player who was on both the retain list and the transfer list could apply to have his transfer fee reduced in the hope that this would persuade another club to buy him. But this did not ameliorate the excesses of the system, even though between 1956 and 1963 75% of the players who used this appeals mechanism either had their transfer fees reduced or were awarded a free transfer. Wilberforce, J stated:
"What makes the transfer fee so objectionable ... is its combination with the retain system. When it is so combined - that is, when a man is retained and it is made known that his club is open to offer, or when a man is put on both the transfer list and the retain list - he cannot escape outside the League. All he can do is (in the latter case) to apply to have the transfer fee reduced. But even if it is reduced, no club in the League may pay it, and yet he cannot go outside" ( 3 All ER 139, 150)
Wilberforce, J concluded that the League's legitimate interests did not justify its use of the retention system, and that the transfer system as a whole was unjustifiable in so far as it operated in conjunction with the retain element (ibid). He also refuted the League's contention that as the retain-and-transfer system operated in all the world's professional leagues it should be taken as evidence that those who know best consider the system to be in the general interests of the game, stating:
"I do not accept this line of argument. The system is an employers' system, set up in an industry where the employers have succeeded in establishing a united monolithic front all over the world, and where it is clear that for the purpose of negotiation the employers are vastly more strongly organised than the employees. No doubt the employers all over the world consider this system to be a good system, but this does not prevent the court from considering whether it goes further than is reasonably necessary to protect their legitimate interest" (ibid).
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The judgment amounted to only a partial victory for the players, though. It was unnecessary for the League to dismantle the transfer system itself, and indeed the 'transfer' part of 'retain and transfer' remained largely unchanged until the Bosman ruling. Wilberforce, J's critical comments were levelled solely at the 'retain' part of retain-and-transfer, and if that aspect was abandoned the rest of the system could be left largely intact. Accordingly, in 1963 a new transfer system was agreed which took into account the judge's criticisms of the 'retain' element. Every player's contract was now a matter of free negotiation between him and the club, without the binds of the maximum wage. Once a contract had expired, the club could only renew it on terms that were no less advantageous to the player than the old ones had been, and the new contract had to last for at least the same time period (unless both parties agreed otherwise). If the club was unwilling to do that, the player was entitled to a free transfer; if the club decided to get rid of the player, the original contract would continue to run until he was transferred. Disputes would be referred to the League management Committee and thence to an independent tribunal incorporating League and Union representatives.
Eastham precipitated the introduction of a new transfer system - one which did away with the 'retain' element, but which gave players in the English game a far greater degree of freedom than they had enjoyed hitherto. Firstly, the new system made it easier for a player to obtain a 'free transfer' at the end of his contract, for at the end of each season clubs had to state which players would be placed on the transfer list but only allowed to move on payment of a 'transfer fee.' Unwanted players who were not on the 'transfer list' list would thus be entitled to seek a free transfer.
More importantly, Eastham changed the position of players who were in dispute with their club even though the club wanted to re-sign them. In the event of a club wanting to re-sign a player who refused to put pen to paper, the new system made provision for the dispute to be referred to a new, independent Transfer Tribunal for arbitration. Invariably, this would mean the club either giving the player a new contract on terms that were acceptable to him, or granting him a transfer to a different club. The days of clubs being able to bring players' careers to an end if they refused to accept whatever terms the club offered were over. Another important change to the system occurred in the mid-1970s, when the League and the players' Union agreed that clubs who wanted to re-sign a player had to offer him a contract whose terms were no less favourable than those of the previous one (Osborn and Greenfield, op cit: 40). Faced with this further erosion of its power of hire and fire, clubs began to offer players longer contracts. The one-year deal soon became obsolete, except in the case of young and inexperienced players, and those nearing the end of their careers whose bodies may not have been able to withstand the rigours of more than another year in the game. Contracts of three years' duration became standard. Now, post-Bosman, seven- and nine-year deals are not unheard of.
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Thus was established the mechanism that would govern players' contracts in England until the European Court of Justice intervened. It had taken almost a century to achieve this limited degree of contractual freedom, but as the European Community's laws on competition and freedom of movement became ever more complex and more sophisticated, it became increasingly obvious that English football's transfer system breached the provisions of the Treaty of Rome. Despite the reforms that followed Eastham some of the most Dickensian aspects of the system remained in place and players were still the chattels of the clubs they played for.
Even worse was the plight of professional footballers North of the border, for Scottish law was unaffected by Eastham and some clubs' practices had changed little since the founding of the Scottish League in the 1890s. The most notorious (and, one trusts, the last) example of Scottish football's Draconian employment practices concerned Chris Honor and Wesley Reed, both of whom played for Airdrie in the early 1990s. In the summer of 1993, they had both reached the end of two-year contracts with the club and were offered new deals. In accordance with the usual practice, when the two had first signed for the club they had been given a basic wage plus a 'signing-on fee', payment of which was spread throughout the duration of the two years of their contract rather than all being paid when they first signed. Like their English League post-Eastham, the Scottish League's rules (specifically, Scottish League Rule 60) provided that if a club wanted to offer a player a new contract, the terms offered to him had to be no less generous than those of the previous contract. But that provision did not take the 'signing-on fee' into account, so when new contracts were discussed each player was offered only the equivalent of his basic salary under the previous contract. This was perfectly legitimate under a strict interpretation of rule 60, but it amounted to a huge reduction in the players' salaries. Honor had effectively been earning £33,000 a year, but all bar £12,000 of this was a signing-on fee: his basic wage was only £250 a week and this was the sum he was offered under the new contract. Reed would similarly see his income drop to approximately £13,000 a year, having previously been earning £20,000.
Both players refused to sign the new contracts, and at this stage they came to realise that Scottish players' situations had hardly improved since the days of Herbert Kingaby, and certainly not since the era of George Eastham. Because the club had offered them new contracts on terms that were, technically, no worse than the terms of the previous one, it was able to demand a transfer fee before allowing them to leave. In the interim, it could retain the pair on monthly contracts at a salary of £250 per week. Airdrie sought £100,000 for Reed (who had signed from English Club Bradford City for £95,000), although that figure was reduced to £65,000 once Reed had been out of the game for a year. Honor had signed from Bristol City for £20,000 and, when Cardiff City expressed an interest in signing him, Airdrie chairman George Peat said the player was available - for £70,000 (Mullin 1996, p 5). Chris Honor now plays as an amateur for Bath City (Spink 1997) and makes a living selling garden ornaments; attempts to trace Wesley Reed have proved fruitless.
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Scotland's was the kind of transfer system that the game's governing bodies, and the clubs, were so keen to defend in Bosman. Ostensibly designed to protect small clubs and ensure the well-being of their players, it was, as Wilberforce J had so presciently noted, an employers' system, initiated in the Victorian era and designed to protect the vested interests of officials and clubs owners. That system was defended to the last by successive generations of 'little shopkeepers' even though, in Walrave and Koch v Association Union Cycliste Internationale  1 CMLR 320, the European Court of Justice confirmed that sport was subject to Community Law if it constituted an economic activity under EC Treaty, Article 2. In Dona v Mantero  2 CMLR 578, the Court held that professional footballers enjoyed the benefits of the Treaty provisions on freedom of movement of persons and of provision of services.
However, Dona also affirmed that in some circumstances the application of nationality restrictions to those who played in national teams would be a 'non economic' issue and therefore exempt from the Treaty of Rome's provisions, the Advocate General expressing the opinion that
"There is nothing to prevent considerations of purely sporting interests justifying ... some restriction on the signing of foreign players ... so as to ensure that the winning team will be representative of the State of which it is the Champion team. ... Even sporting activities run on a business basis may nevertheless fall outside the ... fundamental rules of the Treaty in cases where the restrictions on the ground of the player's nationality are based on purely sporting considerations. Provided that such restrictions are appropriate and proportionate to the end pursued" ( 2 CMLR 576, 582).
This decision reinforced the football authorities' belief that 'purely sporting considerations' meant the imposition of quotas and the transfer system were 'appropriate and proportionate' and justified the provisions of the Treaty of Rome being disregarded despite the Commission's protestations to the contrary. Despite the fact that EC law had applied to the Swiss-based UCI, football's authorities still protested that European Law did not extend to clubs, national Associations and international governing bodies such as UEFA (the European Union of Football Associations) that were based in countries which were not Community members. Indeed, in 1988 the then UEFA President Jacques George opined that "(UEFA) can make up whatever rules we want as long as they are within Swiss laws, as we have nothing to do with the EEC" (Miller 1993, p 14).
Monsieur George was in for a rude awakening, courtesy of another journeyman professional.
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(1) Not to be confused with nearby Clapton Orient, which was Kingaby's first club. The name 'Orient' is taken from the Orient Shipping Line, for whom many of these two teams' players worked.