Mutual Consent-ing Adults

Brendan Hobbs puts pen to paper on signing contracts and why it’s not that simple for those who wish to break the agreement…

Imagine, you’ve just started work for a new company – it offers a new, fresh challenge within a field you have worked in before and have good experience. The company took you on after a successful interview and taking into consideration your CV which boasted an impressive employment history; albeit with companies they’re unfamiliar with and in areas that don’t have the best of reputations. But you’ve been recommended by an enthusiastic recruitment agent who’s obviously got the company’s best interest at heart, so what could go wrong?

A month into your job it becomes patently obvious that you’re not up to the required standard for the business, even completing the most basic tasks seems beyond your capabilities. You’re having difficulty integrating into the culture of the company, and although you’re meeting the required level of discipline there are times when you’ve tested the boundaries.

From the company’s perspective, the only option is to terminate your employment immediately, so a better suited replacement can be sourced tout suite (preferably by using a different recruitment agency). Inevitably you get called into your bosses office to receive the bad news, he informs you that unfortunately you haven’t quite made the grade; he appreciates your efforts and blah blah blah…

When he finishes you sit back, smile, admire your nails and triumphantly produce a piece of paper, one that mentions words like ‘three’, ‘year’ and ‘contract’. It has a mass of pretty signatures at the bottom as well – and some small print that contains words like ‘legally’, ‘binding’ and ‘agreement’. You then promptly walk out and return to your duties, whistling loudly while you continue your sub-standard level of work.

Now, c’mon, how ace would it be if the real world worked like that? For footballers and the whole perverse world of football contracts it does. Chris McQuade from once described football contracts as “the most bizarre of conventions in modern sport” and he’d be right – especially when taken in direct contrast to the rest of the working world in which most of us operate.

Initially the football contract system began as a simple process to register professional footballers to a particular club for the coming season. It was a necessary, if not bureaucratic system for record and registration purposes only – it had to be done before any player could kick a ball in anger. Of course as the game became more popular players soon realised that they could use this contract registration system to their advantage – and refuse to register for the new season unless their club paid them more money, or they’d pack up and find someone else who would. So what started as a dull but essential form filling process soon ended up being used as a tool for ransom, blackmail even.

In 1893 to combat this perceived player power, the FA implemented the ‘Retain and Transfer’ system where a player could only register with one club and could not move to another without the permission of his current club. Quickly clubs cottoned on to the fact they could charge a premium for releasing players and the modern transfer system was born. Ultimately the power shifted back to the clubs and players were basically held to ransom by those who held their registration. This continued right up till 1995 when the term ‘doing a Bosman’ entered modern football parlance. That seismic ruling changed everything – players were given full rights to their destiny following the end of their contract. So it was only post 1995 that the players have really benefitted, while at the same time coming to terms with their own high commercial value as the product.

Swindon find themselves in the position where there are several players with existing contracts who are no longer needed at the club, whether it’s down to their lack of ability (Lanzano) or due to discipline/personality issues (Kerrouche). In the end it makes no difference, they both draw a salary and therefore drain resources from the club.

There’s been plenty of talk on various forums and the Adver comments section concerning the subject, ‘just get rid’, ‘just cancel their contracts’ – or as ‘Wheelie125’ delicately put it ‘just sling their lazy arses out onto County Road and call them a cab’.

Unfortunately there are regulations that prevent us from ‘slinging their lazy arses out’, we’re not some sort of cash-in-hand style employer – picking up illegal migrant workers on street corners. So what options are available to the football club to remove unwanted players from the playing staff? I’ve had a glance through the various rule books and found out the following –

1) Throw them down the stairs. I joke of course, but one easy route to contract cancellation is via the inability to play the game. The Football League specifies in their regulations that clubs can cancel the contract of a player if they are unable to play the game through permanent disability.

2) Back in the real world though, the most well known type of contract cancellation is ‘by mutual consent’. This term is often used when the situation is anything but ‘mutual’. Esajas is an example of a fairly mutual agreement – he needed to get out of the club to pursue apparent suitors in Portugal and we wanted him off the wage bill. On the other side of the coin Luke McCormick had his playing contract cancelled with Plymouth – also by ‘mutual consent’.

The process normally consists of agreeing a suitable compensation figure to pay off the remainder of the players contract, this sum includes wages and bonuses due etc. Although the process is not as straight forward as it appears as there are tax and NI considerations, my Lincoln supporting namesake Neil describes the process so beautifully here.

3) Prove a non-football related misdemeanour on the behalf of the player. FIFA states in Article 14 that a club can cancel a player’s contract without paying a penny of compo if there is just cause. So therefore plant some drugs in the players locker, call in the cops and hey presto!

Article 14 Terminating a contract with just cause
A contract may be terminated by either party without consequences of any kind (either payment of compensation or imposition of sporting sanctions) where there is just cause.

4) Cancel the contract siting ‘sporting just cause’. I imagine this can work for both player or club – article 15 states that over the course of a season if an established player has appeared in fewer than ten per cent of the clubs matches their contract can be terminated prematurely.

The agreement would still have to be mutual, a player cannot just decide to terminate his contract if he hasn’t been picked all season, or on the flipside you could be Winston Borgarde who made just nine appearances for Chelsea during a four season stay between 2000 & 2004 – the duration of his contract. He allegedly picked up £40,000 a week for his troubles, he famously quipped to the press “Chelsea offered me a contract, I signed the contract, so what is the problem?” Fantastic.

Article 15 Terminating a contract with sporting just cause
An established professional who has, in the course of the season, appeared in fewer than ten per cent of the official matches in which his club has been involved may terminate his contract prematurely on the ground of sporting just cause. Due consideration shall be given to the player’s circumstances in the appraisal of such cases. The existence of a sporting just cause shall be established on a case-by-case basis. In such a case, sporting sanctions shall not be imposed, though compensation may be payable. A professional may only terminate his contract on this basis in the 15 days following the last official match of the season of the club with which he is registered.

5) The Wheelie125 method – ‘just sling their lazy arses out onto County Road and call them a cab.’ A great idea and why not? It’s something we’d all like to see – Nick Watkins acting like some sort of gangland enforcer, manhandling the player out of the Arkells before throwing them down onto the tarmac. Jeremy Wray then stands over the quivering body laughing manically as he theatrically tears up the contract before throwing it in the air like a shower of depressing confetti.

It would be good, but unfortunately the club would then fall foul of article 17. We’d have to pay a large compensation figure to the player (if we couldn’t site any wrongdoing on the player’s behalf). Also, as mentioned in point 4 below, the club would also suffer (non-specified) sanctions. In Swindon’s case, it would mean a double demotion no doubt.

Article 17 Consequences of terminating a contract without just cause
The following provisions apply if a contract is terminated without just cause:

1. In all cases, the party in breach shall pay compensation. Subject to the provisions of article 20 and Annexe 4 in relation to training compensation, and unless otherwise provided for in the contract, compensation for the breach shall be calculated with due consideration for the law of the country concerned, the specific city of sport, and any other objective criteria. These criteria shall include, in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, the fees and expenses paid or incurred by the former club (amortised over the term of the contract) and whether the contractual breach falls within a protected period.

2. Entitlement to compensation cannot be assigned to a third party. If a professional is required to pay compensation, the professional and his new club shall be jointly and severally liable for its payment. The amount may be stipulated in the contract or agreed between the parties.

3. In addition to the obligation to pay compensation, sporting sanctions shall also be imposed on any player found to be in breach of contract during the protected period. This sanction shall be a four-month restriction on playing in official matches. In the case of aggravating circumstances, the restriction shall last six months. In all cases, these sporting sanctions shall take effect from the start of the following season at the new club. Unilateral breach without just cause or sporting just cause after the protected period shall not result in sporting sanctions. Disciplinary measures may, however, be imposed outside the protected period for failure to give notice of termination within 15 days of the last official match of the season (including national cups) of the club with which the player is registered. The protected period starts again when, while renewing the contract, the duration of the previous contract is extended.

4. In addition to the obligation to pay compensation, sporting sanctions shall be imposed on any club found to be in breach of contract or found to be inducing a breach of contract during the protected period. It shall be presumed, unless established to the contrary, that any club signing a professional who has terminated his contract without just cause has induced that professional to commit a breach. The club shall be banned from registering any new players, either nationally or internationally, for two registration periods.

Now, I’m no legal eagle, no Perry Mason or Rumpole – there’s probably a hundred loopholes and variations to the rules stated above, but hopefully this has given you an idea of why the club can’t just rip up the contracts of players it no longer wants. I’m sure an amicable agreement will be found in the end though and the mutual consent line will be used many more times this pre-season I’m sure.

One comment

  • Fully agree with the ridiculous nature of the contract system, now so weighted in the player’s favour. Also feel that there is also a compromise agreement somewhere.
    My question is that there was only going to be grief from the ridiculous spate of hasty signings this time last year.
    I do not blame PDC, too inexpreienced at the time. I do not blame Wray but feel he could have known better.Who should have taken responsibility?
    I feel that we have so many people with so much experience on our board that someone should have held counsel and been pragmatic. The Washbag itself questioned the wisdom of the overseas brigade and this was endorsed by so many ‘long in the tooth’ fans. We remember Razor who made the club bleed enforcing a contract.
    Too late now but, salutory lessons learnt.
    Act in haste, repent at leisure.
    Contracts have to be weighted in a club’s favour.
    Have a ‘get out clause’ ready.
    Editing skills are so easily used to manipulate when providing tapes of player’s achievements. Do they ever show a player’s weakness or attitude?
    Agents touting represent the player…..and shoudl be kept away from until the very end!
    If signing from abroad, freebies are not bargains as a rule.
    If it looks like a donkey, brays like a donkey, it probably is a donkey.

    So here is looking forward to some cautious but well researched signings that only improve on what we have and have the potential to play at at least one league higher!


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