Neymar may still have several years left at
the top level of football, but already the
Brazilian forward has shaken up the transfer
market more than once during his career. From
starting a bidding war while still a teenager
at Santos to triggering a 222 million euro
release clause that helped propel a wave of
transfer market inflation. Although he’s
still just 28 years old, no player has cost
more in cumulative transfer fees than he has
.
And yet… Neymar could be about to revolutionise
the transfer market once again and do so thanks
to Andy Webster, a defender from Dundee, Scotland,
whose cumulative transfer fees barely scratched
half a million.
This story starts in the 2005/06 season when
Andy Webster was one of the best players in
a Hearts of Midlothian team that finished
second in the Scottish Premier League and
that won the Scottish Cup. But he didn’t
take part in their victory over Gretna in
the final. Webster was left out because he
was engaged in a contract dispute with the
club, run at the time by the eccentric Russian-Lithuanian
businessman Vladimir Romanov.
Webster joined the Edinburgh-based club in
2001 and signed a contract extension in 2003
that had an end date of 2007. As such, he
was due to complete the third year of that
four-year contract by the summer of 2006 and
he wanted a new adventure. Unable to negotiate
a move away via the usual channels, the defender
turned to Article 17 of FIFA's transfer regulations,
the article titled “Consequences of terminating
a contract without just cause”. This article
outlines what the cost is of unilaterally
breaking a contract and Webster decided that
this was actually a price worth paying.
Article 17 was introduced into FIFA’s Regulations
on the Status and Transfer of Players in 2001,
after the European Commission posited that
football’s rules on transfers didn’t comply
with EU law. A compromise was reached and
new regulations were written up, now allowing
players to unilaterally end a contract so
long as they do so in the 15 days after the
end of a season and so long as they do so
after having served at least three years of
the contract if they signed it before the
age of 28 or two years if they signed it after
turning 28. This two- or three-year phase
what FIFA calls “the protected period”.
It’s technically still possible to breach
a contract during this period, but the sanctions
are much more severe and can bring lengthy
bans.
For Webster, who was 24 at the time, his contract’s
protected period ended in the summer of 2006,
so he told Hearts that he was ending his deal
and moving on. He was the first player to
make use of Article 17 in this way and he
was moving south of the border to join Wigan
Athletic.
Now, there was still compensation to be paid,
but it proved to be far less than the £4m
that Webster was valued at by Hearts at the
time. When Article 17 is triggered, FIFA decides
what amount of compensation should be paid,
calculating it through a quite opaque formula.
FIFA states that the amount of compensation
will be based on:
-the law of the country concerned (which can
vary massively from country to country, with
there even being differences between Scottish
and English law)
-the specificity of sport (a legal term that
provides wiggle room for all parties)
-the remuneration and other benefits due to
the player under the existing contract (so,
basically, the wages due to the player in
the remaining years of his contract)
- the time remaining on the existing contract
(up to a maximum of five years)
-the fees and expenses paid or incurred by
the former club (so, any transfer fees paid
to obtain the player and amortised over the
term of the contract)
In the Webster case, FIFA ruled that Hearts
should be paid by Webster and/or Wigan an
amount of £625,000. Hearts, remember, valued
the player at £4m and challenged this at
the Court of Arbitration for Sport, but this
appeal didn’t go at all to plan for the
Scottish club as the court actually reduced
the compensation they were due even further,
to £150,000.
This was huge. Tony Higgins of the players’
union FIFpro said at the time: “My view
has always been that this is the most significant
case since the Jean-Marc Bosman ruling in
1995. The Webster Case allows players, after
a set period of time and if they so wish,
to decide who their future employer will be.
We now have a degree of certainty about what
the value in question will be.”
Higgins wasn’t alone in thinking that Webster
would set a precedent and in thinking that
moving clubs “on a Webster” would enter
football parlance in the same way as moving
“on a Bosman” refers to a player switching
clubs for free upon completion of a contract.
But Higgins and the other commentators were
mistaken.
There have been very few such cases since
Webster made his move in 2006. In fact, the
few cases that there have been have only made
this legal tool even more complicated and
even more difficult to wield.
Jonás Gutiérrez used it to move from Real
Mallorca to Newcastle in 2008. Real Mallorca
demanded £12m and were eventually awarded
£5.2m, although they had to pay half of this
to Argentine side Vélez Sarsfield who had
also held 50 percent of the player’s rights.
Then there was the case of Matuzalem, a Brazilian
player who switched from Shakhtar Donetsk
to Real Zaragoza in 2007. The Ukrainian side
wanted £25m. FIFA set the compensation figure
at £5.4m, but it again went to the Court
of Arbitration for Sport and on this occasion
they upped the fee, forcing Real Zaragoza
to pay £9.5m.
This case proved that significant fees may
still have to paid for transfers executed
through Article 17 and that Webster’s original
compensation was so cheap mostly because in
his specific case he had just one year left
on his contract, had arrived at Hearts for
a small fee and was earning relatively low
wages.
As FIFA put it after the Court of Arbitration
for Sport’s Matuzalem verdict: “The court
confirms that Article 17 cannot be interpreted
as a simple buy-out clause for players for
a predeterminable amount of compensation.
This CAS decision in fact shows that the compensation
payable in case of a unilateral breach of
contract must be calculated in each case individually
on the basis of the specific circumstances
of the case concerned.”
So… what does this all mean for Neymar,
PSG and Barcelona?
Well, there have been reports that Neymar
and Barcelona are considering using Article
17 to bring the Brazilian back to Catalonia.
It’s well-known that Barcelona never wanted
Neymar to leave when his release clause of
just under £200m was triggered by PSG in
2017 and that Lionel Messi desperately wants
his friend back at the club. Messi even said
after the 2019 summer transfer window that
he “wasn’t sure if Barcelona did everything
possible” to bring Neymar back to the club.
There are long-established gentlemen’s rules
in football and one of them seems to be for
the top clubs to avoid resorting to loopholes
such as this one, but if Barcelona really
do want to do everything possible this time
then they could use the Andy Webster trick.
They’re already not on the best of terms
with PSG, so the view in the Camp Nou boardroom
might be: why not?
According to ESPN, Barcelona already been
discussing various scenarios with Belgian
lawyer Wouter Lambrecht, who has previously
worked at FIFA and at the European Clubs Association,
so knows this legal minefield as well as is
possible.
The contract Neymar signed when he joined
PSG in 2017 runs until 2022. He was below
the age of 28 when he signed it so the period
he must wait before being eligible for a Webster-type
transfer is three years and that period will
end this coming summer.
He would be eligible to unilaterally break
his contract within 15 days of the 2019/20
season ending, which poses problems of its
own as the coronavirus crisis has thrown the
traditional football calendar completely out
of whack. But the key here is that the fee
would be enormous. There is no previous example
that comes close to the numbers involved with
Neymar’s wages or transfer history, so there’s
no way of knowing exactly how much it would
cost Neymar and, therefore, Barcelona. That’s
exactly the way FIFA want it, remember.
Yet experts discussing this situation believe
that the fee could be in the region of £160m.
Whether or not that seems reasonable, the
difference compared to Barcelona’s negotiations
with PSG last summer is that it’s out of
PSG’s hands. The French club can no longer
just put up a ‘not for sale’ sign and
be done with it.
This gives Barcelona and Neymar leverage and
what may ultimately happen is the following.
Barcelona and Neymar have two options. With
option one, they can break the contract and
pay whatever fee that FIFA calculates and
that the Court of Arbitration for Sport then
ratifies, because almost all of these cases
eventually end up in the Swiss court. Or,
with option two, they can use option one as
a threat to oblige PSG to take a seat at the
negotiating table and to work out a normal
transfer.
If Barcelona to use either of these options
to sign Neymar in 2020 then it would be an
extraordinary and shocking transfer in the
eyes of most. But Neymar’s transfer history
is already so multi-layered and contains so
many twists and turns that it would almost
be shocking if he didn’t use the precedent
of a retired Scottish defender who moved between
Hearts and Wigan in 2006.
