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A Diagnostics Appraisal of the FIFA's Proscription of Third Party

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A Diagnostics Appraisal of the FIFA's Proscription of Third Party KIU Journal of Social Sciences KIU Journal of Social Sciences Copyright©2018 Kampala International University ISSN: 2413-9580; 4(4): 111–115 Is What is Good for the Goose also Good for the Gander?: A Diagnostics Appraisal of the FIFA’s Proscription of Third Party Ownership of Professional Footballers’ Rights EMMANUEL OLUWAFEMI OLOWONONI Nigerian Law School, Headquarters, Abuja, FCT, Nigeria. Abstract. This paper takes a critical analysis of commercialized activities. The game of football football transfer market rules of third party has been transformed from a semi- Ownership of Professional Footballers’ Rights commercialized activity in which financial by appraising the Case of Carlos Tevez and benefactors supported teams and any aim of Javier Mascherano and FIFA’s restrictive making financial profit was secondary to the measures. The work examines the essential glory of the game to a ruthless business underpinning principles and philosophical operation. It is interesting to note that football justification of the proscription of the practice by accounts for more than five percent of world FIFA. In doing this, the work considers the trade and some over five million jobs directly sophistication and extant development of the and indirectly related to football have been various football continental bodies. The work created. concludes that what is good for the goose is not always good for the gander and as such total 2. Football Contract and Transfer proscription is unacceptable Market 1. Introduction Football contract is a term used to describe the legal contractual issues at work in the world of Sports have been envisioned as “a world football game. It is a combination of language with many dialects”. Sports are entertainment law, contract, tort, criminal law, becoming more professional and the stakes are commercial law, intellectual property, labour becoming higher than ever, disputes resolution law, law and practice of dispute resolution.With takes on an increasingly important role in the the professionalism, media coverage, industry. Football has expanded tremendously in commercialization, impact of law and modern line with modern realities. The football industry realities in football came also the idea of football is as today complex, commercial, industrial and transfer contracts. Football Transfer Contracts far from the mere pleasure, fun and enjoyment it go beyond an arrangement between players and used to be. club. Football contract reflects many spheres of football such as players’ transfer, licensing, Football, or soccer as some regions of the world sponsorship, endorsement, merchandising, refer to it, is the world's most popular sport. The image rights, broadcasting arrangements, game is not just a pastime, but also a massive, advertisement, insurance, kits and apparels revenue generating industry. Football as it is manufacturing, collective bargaining agreement, today has grown from activities for mere discipline, loan, players and clubs’ obligations, pleasure, enjoyment and fun to complex and restraint of trade, privacy rights, defamation, 111 KIU Journal of Social Sciences football regulations and specially dispute the limelight, media scrutiny and legal resolution. discourse. Transfer market on the other hand in In this case, Kia Joorabchian was said to have professional football, is the arrangement through entered into a ten-year agreement with football which players change clubs through the club Corinthians of Sao Paulo, Brazil in the year international transfer system, whereby clubs buy 2004. Based on the agreement, Joorabchian's and sell players. According to a learned author, London-based company, it was reported Media transfer system in sport is economic exchange in Sports Investments invested 35 million dollars in every sense, social and material. However, what the club in exchange for 51 percent of the club's is being given economic value and exchanged in future profits. Corinthians Football Club in the the transfer market is not the player and his Brazilian football was said to have broken labour (for that he receives a salary) but some domestic transfer fee record by purchasing other concepts of value integral to his labour. Tevez from Club Atldtico Boca Juniors, a The process is a typical sales transaction that Buenos Aires, Argentina club, for 22 million involves a buyer and seller negotiating and dollars, and Mascherano from Club Atldtico agreeing on a fee, after which the player moves River Plate, another Buenos Aires club, for 15 to the new club. The player signs an million dollars which as of then was exceptional. employment contract with the new team and After a huge successful season, many of the top receives a bonus called a "signing-on" fee, while European clubs, including English Premier the player's old club receives the transfer fee League (EPL) giants Chelsea, Manchester from the purchasing club. Football transfer United, Liverpool and Arsenal, were rumored to contract comes with salient features such as the be in the transfer market for the two players. contract must be in writing, duly signed by both By August 2006 at the opening of the transfer parties with date and place mentioned in the windom, West Ham United signed the two contract and each signatory party receiving a players away from Corinthians football club on copy of the contract and another copy forwarded an undisclosed transfer fee though rumored to be to the Professional League and or member exorbitant as well. Tevez and Mascherano Association for registration according to the arrived at the West Ham united Football Club provisions of the competent football body. The amidst this controversy and applaud but they agreement must further state the full name, birth received limited playing time at the beginning date, nationality, full address of the residency of and their future with the Upton Park club was in the player in case of individual and in case of doubt under Magnusson's ownership. West Ham club, the name of the club and the person therefore decided to send Mascherano on loan to representing the club. The agreement defines a Liverpool Football Club during the January clear starting date (day, month and year) and the 2007 transfer window. ending date. Tevez, on the other hand continued with West Ham football team that was fighting and battling 3. Third Party Ownership of with threat of relegation from the English Professional Footballer’s Right Premiership League to the championship side. Meanwhile, West Ham's relegation fight was to Third party ownership of professional be determined by the last match of the season; footballer’s rights is a practice that involves a incidentally Tevez's winning goal against professional footballer signing a contract with a Manchester United was a decider and thus third party that is unaffiliated with a professional ensured West Ham's continuation in the English team and or football industry, whereby the third Premiership League. This also means party finances the player's development in consequently that another team will suffer exchange for the rights to the player's transfer relegation. In this instant case, it was Sheffield fee. The Carlos Tevez and Javier Mascherano United that was relegated accordingly to the transfers saga were the events that brought third League Championship. party ownership of professional footballers to 112 KIU Journal of Social Sciences Therefore, Sheffield United claimed that their FIFA immediately and swiftly reacted to the relegation resulted in a revenue loss of 50 scandal of third party ownership of economic million pounds, and requested arbitration before rights of players as widely exposed by the the Football Association. West Ham as some transfer of Tevez by enacting the controversial commentators said as if to appreciate its survival Article 18b. This amendment was set and was in the English Premiership League and the role actually made to come into effect in the 2008- played by Tevez agreed to transfer him to 2009 seasons, and it states, Manchester United on August 2007 a more robust and career enhancing club. The deal, Before registering a player for a club the board however, appeared frustrated because the will need to be satisfied there exists no English Premier League demanded that West agreements with third parties under which such Ham be the sole recipient of the transfer fee third parties continue to own any registration or since the club earlier argued during its economic rights or the like in the player disciplinary proceedings of April 2007 that it following registration. had terminated the third party ownership of Tevez's rights. This arrangement is unpleasant to FIFA further threatens severe disciplinary Joorabchian and swiftly disagreed, maintaining measures for any club and federation that fail to that he never agreed to terminate the contract abide by Article 18. This means, therefore, that and that in any case, he still owned Tevez's clubs entering into contracts where a third party economic rights. He further argued that on the holds the economic rights of a player could be other hand, since Tevez was only on loan at subjected to penalties that range from playing a West Ham, the club has no right to participate in match without spectators, deduction of points, the transfer fee. Joorabchian immediately to expulsion from the league. maintained an action against West Ham for breach of contract. The parties requested FIFA's Having noted the issue of third party ownership intervention, but FIFA refused to intervene and interest of a player and the outright ban of same suggested rather that the dispute go before the by FIFA, this research work is of the view that Court of Arbitration for Sport. this case raises certain fundamental issues Finally, on August 3, 2007, the parties reached apposite to our present discussion. Key amongst an agreement under which West Ham received which are is outright ban the solution to third two million pounds for Tevez's registration, thus party rights of professional footballers, second releasing the Argentine from any obligation with does the ban imposed by FIFA takes a critical West Ham and allowing him to sign with consideration of the underpinning motives and Manchester United.
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