Sympathy for Ashley Cole has been hard to find in his battle for the right to talk to Chelsea behind Arsenal's back. But, as Neil Rose points out, the rule cole is battling costs less well paid players dear and he might yet win on principle in the courts
To most people, the Ashley Cole affair, with meetings in posh hotels and squabbles over whether an extra £5,000 a week really was promised, seem far away from everyday life. It was Shaka Hislop’s evidence to the disciplinary commission that brought it down to earth. He was called by Cole’s lawyers to show the unfairness of Premier League rule K5, which prevents a contracted player making an approach to another club without the consent of his employer and under which Cole was fined. Near the end of his career at 36, Hislop did not know at the time whether his contract, expiring on 29 June, would be renewed by Portsmouth.
“In a situation such as this,” he told the three-man commission, “any normal person would undoubtedly be taking steps to source potential alternative employment at the end of his current contractual term. However, due to rule K5, I am prevented from doing this… I do not see why I should be forced to go ‘cap in hand’ to my current employer in order to ensure that I am still in a position of being able to support my family.”
It is this perceived inequity between player and club - free to negotiate to sell a player when it wants without even informing him - that led to the description of the relationship as “master and servant”, legal terminology that had unfortunate and unintended racial overtones when used by Cole’s solicitor.
The commission recognised the “undoubted hardship”the rule causes the likes of Hislop, forced to wait until the third Saturday in May before being allowed to look elsewhere. But this was not enough and it agreed that football is a special case that means it can act this way.
Cole has pledged to challenge K5 in the courts. Post-Bosman football is increasingly nervous of the long arm of the law, whether extending to fights on the pitch, career-ending tackles or its ability to sell TV rights. There is no doubt that K5 is, in legal parlance, a restraint of trade. As solicitor and football agent Mel Goldberg says, in every other walk of life people working under fixed-term contracts - even equally high-earners like bankers - do not face such a restriction.
To justify it legally, the football authorities need to prove that it is reasonable in both the game’s and the public’s interest. The commission, headed by a former appeal court judge, accepted that it is. The Premier League argued that rules K5 and K3 (which stops clubs approaching contracted players) are necessary to maintain football’s competitive integrity and balance, as well as contractual and team stability. But without K5, would - as the commission predicted - the number of transfers increase and the balance between player’s agents and the clubs tilt significantly in favour of the agents ‘and their incomes’? Or was the guiding principle here simply to stop agents gaining more power?
Cole’s lawyers say the combination of K3 and the transfer window (both of which are highly unusual employment restrictions as well, of course), and the fact the player would still be under contract, would prevent any instability or damage to clubs’ negotiating position caused by abolishing K5. And as for the corrosive impact on team stability and supporters’ loyalty if there are more transfers - well, there are lots of moves now without any such effect, they say.
One problem Cole faces is that the K5 was agreed by the PFA as part of the standard player’s contract - indeed, the commission pointedly noted that as Arsenal’s PFA representative, Cole has never spoken against it until now. In neutral evidence, Gordon Taylor said the rules aim to strike a fair balance between all concerned, promoting competition and stopping “the biggest, richest clubs looking to destabilise players of rival clubs, for example”. Sports lawyer Dominic Farnsworth says that while Cole may have “some nice legal arguments” to make, it would be a surprise if he could upset a transfer system agreed by the PFA on one side and, ultimately, the European Union on the other.
There are potential dangers for footballers if they end up with the freedom of contract the rest of us enjoy. The commission was told it could lead to clubs offering shorter contracts, good for the player in demand, but less so for the injured or out-of-form. Also, could Arsenal also put a clause in players’ contracts that they cannot move to Chelsea or Manchester United for six months after leaving Highbury? The courts are generally not keen on such restrictions, but they are enforced sometimes.
In any case, the commission decided that the stability of the player’s contract benefits the player more than the club. Even though technically he is tied to a club, “in practice if a player is determined to leave he cannot be forced to stay and play’”
But Cole’s challenge does have grounds for hope. The commission’s reasoning looks shaky when it comes to whether K5 can be justified in the public interest. This ‘requires that professional football should be properly organised and administered’ (whether it currently meets that test is a moot point). The commission accepted the evidence of Tottenham’s company secretary, John Alexander, when he said that ‘if players were simply seen as mercenaries, supporter interest would diminish’. It also suggested that fans would be disenchanted if they thought a player was playing within himself against a club he had contacted. It makes you wonder if any of these people have ever been to a football match.
Cole’s legal team says the roof did not, despite predictions, fall in after Bosman, and there is no reason to think it will do if they succeed. And if rule K5 in isolation is abolished, will much actually change? Goldberg - who says Cole’s case “has a shout” - points out that usually clubs approach players, rather than the other way round.
If the ever-growing role of agents is what this is really about, then the authorities should get on and tackle that - and leave Ashley Cole in the corner he seems to have painted himself.
From WSC 222 August 2005. What was happening this month