Tapping-up, bungs and windows: whither the transfer system?

In the world of international professional football player mobility today is far greater than at any time in the past. This situation is the consequence of the significant juridification of professional sport which was primarily generated by the historic Bosman ruling in December 1995. The profound changes, that have taken place, have thus occurred in a mere 10 years' time-span. Since Bosman, the most important changes have been with respect to the changes to the international transfer system, and the Kolpak ruling delivered by the European Court of Justice in 2003. The current FIFA rules were adopted in July 2001 and revised in October 2003. Strictly, speaking, these rules represent a voluntary change to the transfer system, but they occurred under a very real threat from the European Commission that, if voluntary reform had not taken place, the Commission would have challenged the old rules in the European Court. This paper will briefly evaluate the impact of Kolpak and the new transfer rules on the dynamics of sporting contracts and mobility of sportsmen. This murkier side to the transfer system will be considered in the context of firstly, 'tapping up', where players and managers are approached by other clubs concerning potential contracts (e.g. Ashley Cole and Chelsea; Harry Redknapp and Portsmouth FC) and secondly allegations that bungs are still rife in English football, (note allegations to the media by the Luton manager, Mike Newell). It will be interesting to see, should a case ever come to court, how the granting of an injunction to restrain a player from acting in breach of contract might be viewed in a situation where 'tapping up' had been fuelled with a 'bung'. There is one other important restriction on player mobility that has also resulted from the FIFA rules, this being the introduction of transfer windows. As a matter of law, these could be challenged as a restraint of trade and/or violation of Article 39. In sporting terms, arguably, the only beneficiaries are the super rich clubs such as Chelsea and Manchester United. Transfer windows facilitate the retention of top class players by such clubs, even though they are not regularly selected for first team football during the season. It remains to be seen what impact the FIFA rules have on the domestic game. There must certainly be some potential for arguing that they should be extended to domestic as well as international transfers. Prior to the new rules being approved by the European Commission, there was speculation that the entire transfer system could be ruled as being contrary to EU competition law. Similarly, there was speculation (in the case of Balog) that the ECJ might extend freedom of movement to nationals of 'third' countries. Neither of these legal developments has yet occurred and the transfer system is still very much with us, but for how much longer?