The laws of the game

Independent, Tuesday December 02, 2003

The England rugby team sits proudly on top of the world, but how different it might have been. On the eve of a test match against Argentina in November 2000, the players threatened to go on strike if demands over pay and conditions were not met. Coach Clive Woodward lambasted them for making a "huge mistake," and warned his squad that if they went on strike, they would never play for England again. They backed down, and afterwards, in an astute piece of man management, Woodward said that he harboured a sneaking admiration for his squad's commitment to each other. Many of that same squad are now world champions, set for life.

Threats of industrial action occur with dismaying regularity in football. Most recently, threats were made by the players outraged by what they perceived as unfair treatment of fellow international Rio Ferdinand - before the European Championship qualifier against Turkey. Many observers were left believing that 'player power' had gone too far. After all, this wasn't Hollywood, where the cult of celebrity had just propelled Arnold Schwarznegger to the governorship of California, it was a vital match in the fiery heart of Istanbul.

But despite the controversy engendered by the talk of strike action, it appears to be have been more a misconceived act of loyalty than a real threat. For all that Gary Neville, the England and Manchester United full-back, emerged as the prime mover behind the squad's active disquiet, his rhetoric redolent more of the days of Arthur Scargill and the miners' strikes than today's agent-driven football world had little, if any, foundation in law. As sports lawyer Ian Blackshaw says: "The threat to strike was a an empty gesture. It had no legal basis."

The players are employees of their clubs, not the Football Association, which engages them for pre-tournament internationals on a per game basis. Their union, the Professional Footballers' Association, threatened strike action in November 2001 in a dispute over the players' slice of television revenue. On that occasion the PFA held a ballot among its 3,500 members, which resulted in 99% backing strike action. In the event, a deal was agreed and the strike did not go ahead, but if the England players had refused to fulfil the country's fixture against Turkey, what would the consequences have been?

Karena Vleck, head of the sports group at Farrer & Co., says that the use of the word 'strike' is a misnomer. She compares footballers to "highly paid bankers in the city, who simply would not 'strike' in order to secure a 10% pay rise," and whose relationship with the FA is not one of an employer and an employee. Moreover, if they had downed boots their defence to an action for breach of contract by the FA would have been thin on the ground. "It is difficult to see what defence they would have had," says Vleck. "They were objecting to a breach of confidentiality surrounding Ferdinand's drug test but at best this might give them a moral defence, but certainly not a legal one."

Just as well, then, that the players ultimately decided to go to Turkey. But according to Fraser Reid, of Addleshaw Goddard's sports group, the episode illustrates just how confrontational football politics can be. "The players have become so famous that they have extraordinary clout in any negotiations," says Reid. "Arguably, football did not put its house in order at the outset, so that now there are different factions the players, their agents, the administrators, the clubs all vying for control. It's no surprise that this kind of squabble can erupt in football." Reid contrasts rugby union, where despite the shenanigans of November 2000, a de facto 'collective bargaining agreement' (CBA) exists and where, at the dawn of the professional era, the players' representative Damian Hopley did his utmost to harmonise relations among rugby's various bodies.

CBAs are used in many American sports, such as basketball, ice hockey, baseball and American football, and have their origins in trade union law. Put simply, a CBA is an agreement between an employer and a labour union produced through collective bargaining. In the sports context, a CBA will be between the owners (often a federation) and the players. It will outline things such as players' minimum salaries, revenue sharing arrangements and disciplinary practices in short, the fundamental terms and conditions of the players' employment, as well as the commensurate obligations of the employer/owners. The CBA will set up mechanisms for contract renewals and negotiations, and provide for a standard contract for the players involved.

Advocates of a CBA maintain that it provides not merely for clarity, so that all involved know where they stand, but also for success and stability. A CBA exists in Australian cricket and rugby union, both of which are famously successful. But in America, Major League Baseball has been blighted by strikes as a number of disparate parties some 30 baseball franchises of vastly differing means periodically play out their internecine strife, with or without a CBA.

Closer to home, Reid says that football may be too set in its ways for a CBA ever to be agreed. "A collective bargaining agreement can have the effect of lessening conflict," he says, "but it is very hard to see how the various competing interests in football would ever agree." And there is no guarantee that a CBA is a panacea for all a sport's problems. In Norway, despite the existence of a CBA, a strike described by a number of managers as "purposeless and unethical" took place in June 2002 as players argued over new standard player contracts.

Perhaps, when all is said and done, it comes down to attitude. Ian Smith, head of Clarke Willmott's sports department and legal advisor to the Professional Cricketers' Association (PCA), says that in cricket "a much more co-operative model is evolving," a view endorsed by the PCA's Chief Executive Officer, Richard Bevan. "We need to understand that the players are not just employees but also the product," says Bevan. "They're stakeholders, the emotional clay that can turn a good sponsorship deal into an excellent one. But problems in a sport need to be solved around the table. This is something we're actively looking at with the ECB [England and Wales Cricket Board], so that we can maximise opportunities and keep business partners and sponsors in the game for longer." As Smith says: "There is no need for player power to cause problems. Why does it always have to be a fight?"

Against this, we have Gary Neville comparing the England players' actions to the camaraderie of life at Manchester United: "I have been lucky enough to play for 12 years for a club where, if you are in a tight spot, people would look after you as they would their own family. If that can happen at Manchester United, I would also like to believe it can be the same with England. The players believed Rio had been hung out to dry and we had to show we meant business."

Neville might pause to reflect that life as an employee of Manchester United is not the same as that as an England player. Not in law, at any rate. Meanwhile, a new era may yet dawn as football, for once, looks to rugby union. But don't count on it.