So far, most legal comment on the agreement reached between the EC and FIFA on transfers has concentrated on uncertainties relating to establishing compensation for training and “sporting sanctions” (whereby players who have breached their contract will not be allowed to work for a specified period). However, English football has a particular difficulty arising from the fact that under the agreement, there is to be a very limited transfer “window” in the course of the season for international transfers whereas the English deadline covers a large part of the domestic season. In the heady hours following announcement of the deal, much was made of the fact that national leagues can legislate freely within the domestic arena. However, they can only act autonomously if the Treaty of Rome is not infringed. To allow players to move freely in the course of most of a season up to the deadline, provided such movement takes place within England, but not to allow such extensive freedom for international transfers obviously raises questions.
Unlike the continental leagues, the English clubs have always insisted on a late transfer deadline. This has enabled them to off-load players in the course of the season to head off the demands from the bank manager, or to acquire players when the best striker is injured or off form etc. Whether this hedge mechanism aids efficiency is open to question but small clubs in particular rely on it.
Unfortunately for the clubs in England, in the Lehtonen case decided last year, the European Court of Justice held that transfer deadlines amounted to an obstacle for the free movement of workers that could only be justified on sporting grounds. The sporting grounds that might justify only one small “window” in the course of the season for international transfers are the ones that FIFA and UEFA argued for, namely that it assists stability. Unfortunately, that argument is seriously undermined where domestic transfers are not subject to the same restriction as international ones.
The football authorities in England are clearly between a rock and a hard place. They made great play of the need for stability in their contribution to the frantic debate with the EC, and yet the domestic game’s system actually honours stability more in the breach than in the observance. It follows that the differing treatment for international transfers will be wide open to challenge if the domestic system is much more open – as most clubs prefer.
It was recently reported that the FA had passed the issue of transfer windows to their lawyers. It is highly likely that their advice will give grounds for considerable anguish in English footballing circles.