The International Sports Law Journal 2005, No. 3-4 - Asser Institute

to act in the best interests of Fulham in transfer dealings but that, on
the facts, Tigana had not breached those duties. It is debatable, however,
the degree to which those involved in transfer negotiations can
breathe a sigh of relief.
On the facts it is difficult to see what other conclusion Elias J could
have reached. Al Fayed’s view of the van der Sar transfer was that the
player had been overvalued by (a mere?) £1m. He had perhaps greater
cause for complaint regarding Marlet’s £12m valuation. The real concern
for those involved in transfer negotiations must be that that Al
Fayed’s action is an attempt to apply objective standards to an inherently
subjective process. The transfer fee represents not only the
worth of the player at the time of transfer but also his potential, his
intellectual property value, his attitude and other factors related to his
contribution to the team e.g. how desperate is the club for, say, a 20
goal-a-season centre forward? Additionally a player’s transfer value is
as much a reflection of the buoyancy or otherwise of the transfer market
at the time of the transfer as it is the true ‘value’ of the player.
Equally, a player’s inability to perform up to his value could be due to
a host of other factors, some of which may be personal such as his
inability to come to terms with another culture and some due to the
vicissitudes of life.
Perhaps the most important and illuminating feature of the case is
the examination by Elias J of the mechanisms and actors involved in
transfer negotiation and it is here that professional football can learn
important lessons that will prevent any recurrence of actions such as
this. One issue of fact that Elias J decided was that Tigana did not
have, nor did he purport to exercise, any authority to agree transfer
fees and player wages. Fulham had argued that Tigana had effectively
negotiated the transfers. Very little has been written about this important
aspect of contractual dynamics. The lines of authority between
those negotiating and those approving transfer fees are blurred. To
what degree does the average manager involve himself with the various
stages of transfer negotiation? Most likely all managers have a say
in the initial identification and subsequent valuation of the player in
question - after all, the manager is usually the person at the club most
steeped in an understanding of the factors described above - but there
is enormous variation in the involvement of the manager/coach
beyond this point in the process. A football club can circumvent most
of the suspicion and recrimination of the Fulham case by clearly
defining roles and lines of authority.
Finally, one issue of the case will come as no surprise to sports
lawyers. In the middle of the negotiating process were the agents (one
of whom was a FIFA licensed agent). Commissioned by Fulham but
appearing to represent at various times the player and the selling club,
their position was described by Elias J as a ‘sham’ 2 . Many more cases
such as this and the clamour will begin for proper regulation of football
agents. And not before time.
2 At 114.
❖
Should Sports Disciplinary
Proceedings Be Held in Public?
by Ian Blackshaw *
The Jockey Club, which regulates - and has done so for more than 250
years - British Horseracing, often referred to, not without significance,
as ‘the Sport of Kings’, is no stranger to controversy or the
courts when it comes to defending its interests or reputation. It is also
a rather hidebound and traditional organisation - not least because of
its high society members, who rejoice under the rather medieval title
of ‘stewards’. And not, therefore, one that might be expected to break
with tradition. However, it has not been enjoying a good press in
recent times. In October 2003, it was branded as being ‘institutionally
corrupt’ in a BBC TV ‘Panorama’ programme. And, in April 2004,
the Office of FairTrading (the UK Anti-Trust Authority) published a
Report alleging that it engaged in certain restrictive practices contrary
to the provisions of the UK Competition Act of 1998.
But, on 3 February, 2005, the Jockey Club acted completely out of
character and held its first Disciplinary Hearing in Public. Well - not
exactly. As members of the public were not admitted, but members of
the press were allowed in to witness the proceedings and also to report
on them without any restrictions. It seems that the rationale behind
this move was to make the Jockey Club less opaque and more open
and transparent in an attempt to shake off its rather tarnished and
secretive image. The proceedings were well and truly reported in the
British Press and on radio and television.
The actual case was not per se important - it involved a female
apprentice jockey who was alleged to have infringed the rules of racing,
but was, in fact, acquitted and left the hearing without any blemish
on her character and presumably her future career. However, the
principle is important. And raises the vexed question whether Sports
Disciplinary Proceedings should be held in public.
In trying to answer this question, as a British lawyer, I am reminded
of the former Lord Chief Justice Hewart’s famous dictum: ‘Justice
should not only be done, but be seen to be done.’ In other words, justice
should not be dispensed in secret. In general, proceedings should
be held in public. Otherwise, public confidence - which is not that
high anyway in the UK following some high profile miscarriages of
justice - in the justice system may well be undermined or eroded. Of
course, there are occasions when proceedings should be held in private
- ‘in camera ‘. For instance, which is highly topical in these times
when we are waging war on terror, when national security is threatened
or may be compromised.
But we are dealing here with sports disputes and sports disciplinary
proceedings. And, as the European Union has recognised in several
Declarations on Sport and now enshrined in a Sport Article in the
new European Constitution Treaty, recently signed in Rome, like the
first one in 1957, but not yet ratified by all the Member Sates, sport is
special - it has its own peculiar characteristics and dynamics.
Furthermore, sports bodies and persons prefer to have their disputes
settled in private and within the ‘family of sport’. And not in the full
glare of publicity. In other words, to adapt a well-known phrase in
English, they prefer not ‘to wash their dirty sport’s linen in public’.
Although the rationale for the Jockey Club holding its first public
Disciplinary Proceedings is a worthy one - more openness and transparency
- this development, if repeated by the Jockey Club and adopted
by other Sports Bodies, could turn out, in my opinion, to be a big
mistake. And also counter productive. To hold such Proceedings in
public can inhibit the parties from taking their disputes to such dispute
resolution bodies and discourage witnesses and others with an
* Ian Blackshaw is an International Sports
Lawyer and may be contacted on ‘cblackshawg@aol.com’.
54 2005/3-4
OPINION