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Sunday, 06 September 2009 17:36

Tying Child Athletes Into Contracts

How free do you think you are? Suppose someone approached you tomorrow and offered to double your current salary if you came to work for them - are you free to go? You probably think you are but, depending on the type of contract you have, you might not be. If, for example, you are a smart software developer your employer may have put a clause in your terms of employment preventing you from working for the competition until your contract expires.

And anyone inducing you to breach this contract would be guilty of tortious interference, and liable to pay damages if they succeeded in luring you away.

In the football world the practice is quaintly known as "tapping up" and in American sports it is called "tampering". RC Lens claim that Chelsea induced 15-year-old Gael Kakuta, who had been contracted to the French club since the age of 8, to join the English club, in breach of FIFA transfer rules.

The FiIFA rules, which are accepted by all of the member associations and clubs, are essentially a form of private law, intended to provide a level playing field across the football world. This is because not all national legal systems accept principles such as tortious interference.

Players have always faced significant restrictions on their freedom of movement in sport. As early as 1879 the National League of baseball in America restricted the right of players to move without agreement of the club and the English Football League introduced a similar system in 1889, one year after its foundation. The clubs advanced many arguments in favour of these rules: maintaining financial stability, competitive balance and compensation for investment in training and development.

But it's not hard to see that these rules restricted a player's bargaining rights and so held down wages. Player salaries only started to reach the stratospheric levels we are now familiar with once player unions in the US went on strike to win concessions from the owners and when the courts in Europe started to challenge unreasonable restraints, most famously in the 1995 Bosman case. In a free market all the money will end up with the players, since they have the talent that the fans go to watch. That's only fair.

FIFA's justification for its rules is that they ensure contract stability and investment in youth development. But the penalties imposed on Chelsea also reflect concern that wealthy English clubs are pillaging the youth academies of Europe for the glory of the Premier League. Fifa wants to impose nationality rules to restrict the migration of talent and Uefa wants to oblige clubs to field a minimum number of homegrown players. However, so long as the Premier League has the highest attendance, highest ticket prices, most valuable TV rights and biggest merchandising operations, it's hard to see what will stop the flow of talent.

Players themselves like the freedom to move, and might even deliver more when they have more freedom. Consider the following: in Massachusetts companies can insert non-compete clauses into employee contracts to prevent them moving to a rival, while in California such clauses are not enforceable. Some observers have argued that this is why California's Silicon Valley has thrived. while Route 128 high-tech industry in Massachusetts has been left behind.

American sports have always taken the contract stability much more seriously than we do in Europe. In Europe clubs regularly communicate their intentions to acquisition targets without consulting the current club, as the rules oblige them to do. In the US sanctions can be draconian. Ted Turner, founder of CNN and owner of the Atlanta Braves, was once banned from baseball for a year merely for saying at a party that he was interested in buying a player from the San Francisco Giants. But has this made their players any better? Are their training regimens superior? It's not obvious.

Then consider youth investment. Tiny RC Lens has a youth academy; the mighty New York Yankees do not. Why? The Yankees cannot sign contracts with eight-year-olds and demand transfer fees under US law, while European law allows RC Lens to do precisely that. Do we really want eight-year-old boys being fought over by clubs? It would be better to let them grow up and get an education first rather than deluding them into thinking that they will become football stars.

In America, player development and education go hand in hand via the college draft system, making it more likely that unsuccessful players have an alternative career to fall back on. Admittedly, American baseball teams now set up academies in Central America, where they can write the kinds of contracts that we see in football, meaning that an increasing fraction of baseball players come from outside America. But shouldn't we be levelling up rather than levelling down?

In essence the problem comes down to where we draw the line. The age at which we allow contracts to be enforceable dictates our football culture. A contract creates a kind of property right, and that property right can conflict with personal freedom. When that involves consenting adults who are paid millions for their services, there is little cause for alarm. The most striking, and appalling, aspect of the Kakuta case is that it involves haggling over a child. Never mind the rights of the clubs, right now Fifa is not doing enough to look after the rights of kids. How far away are we here in South Africa from this happening to the school athletes of today? Lets hope that South Africa sports learns from the mistakes of others.