6th August 2021
On the face of it, this blogpost may be about football – but the point it is seeking to advance is about all legal agreements, including the Brexit deal.
So if you are not a football fan, bear with the context, for the post is really about a more important general principle.
By way of background, there have been two football transfer stories in England in the last week.
One is the completed record £100 million transfer of Jack Grealish from Aston Villa (the club I happen to support) to a Manchester club.
The other is the potential and, as yet, frustrated transfer of England captain Harry Kane from a London club to that same Manchester club.
(I hope the supporters of those other clubs do not mind my gentle teasing – Aston Villa fans have not had a great few years, and we have to take pleasures as we can.)
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The story of Jack
The reason why the transfer of Jack took place is that he (with his agent and his lawyers) negotiated a particular provision in his contract with Aston Villa.
This provision appears to have been a clause with the following form:
In the event that
(a) there is a transfer bid of £100 million is received from
(b) a club taking part in the European champions league and
(c) Aston Villa is not taking part in the European champions league,
then a release option can be triggered by the player.
This provision appears to have been inserted in the new contract that the player negotiated and signed with the club last year.
It seems that Aston Villa did not want to sell Jack at less than £100 million nor in circumstances that would adversely affect the club’s chances in the European champions league in the happy (and then unlikely) event the club qualified for the competition.
The £100 million amount selected was a record fee for a transfer between domestic clubs and would have (then) been regarded as prohibitively high, but it also was a sincere and fair estimate of the value to the club of the club’s captain, who they perceived to a be a world-class footballer.
On the other hand, Jack did not want any old transfer from Aston Villa, but he wanted to have the real option of joining a club where he could play alongside and against players of a similar standard to himself in European champions league football.
Both parties agreed that this would not and should not happen if Aston Villa itself was playing in the European champions league.
So both parties agreed that in the foreseeable circumstances of interest from a club taking part in the European champions league, what the allocation of risk would then be, and they agreed a practical provision accordingly.
And when interest came from such a club, the parties then know what their interests and positions would be.
Wise Jack.
Wise Aston Villa.
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The story of Harry
Harry also wants to join the same Manchester club.
But it appears Harry and his advisers did not negotiate such a provision in his contract with his London club, who are not taking part in the European champions league.
This was even though it was foreseeable that clubs taking part in the European champions league would want to purchase the England captain and leading goal scorer.
And because there is no such provision to trigger, Harry is reduced to refusing to turn up for training.
It appears he is seeking to use extra-contractual means to end his contract with present club, so as to force through a desired transfer.
This tactic may or may not work, but it is certainly unseemly.
A better approach would have been for him (and his advisers) and the London club to have sat down and discussed the possibility of such a transfer.
The London club, like Aston Villa, could have stipulated onerous conditions to protect their legitimate interests which would have to be met, and Harry could have accepted these conditions in return for the right to trigger the option of a release if those conditions were met.
Of course, it take takes two parties to agree a contract – and it may be that one (or both) of the parties could have refused such a provision outright.
But such a lack of realism has only resulted in the current messy situation, and stubbornness would have achieved little.
It would have been better for both parties if such a realistic option had been provided for.
Instead Harry is at home upset and frustrated.
He appears to have believed there was a ‘gentleman’s agreement’ that would bind the London club, rather than the club being bound by the actual wording of the contract.
Unfortunate Harry.
Unfortunate London club.
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The story of Brexit
With Brexit, the United Kingdom appears to have adopted the Harry Kane approach to contracts – of signing some agreement and then hoping the agreement does not mean what it says.
And so the United Kingdom government is, in effect, also sulking in its plush London home, hoping to force the European Union to move from what was actually agreed.
A more sensible United Kingdom government would – at the time the agreement was negotiated – have dealt with foreseeable risks by allocating the risks as between the parties.
The United Kingdom should have been more like Jack.
But instead it has been like Harry.
Unfortunate United Kingdom government.
Unfortunate us.
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The essential problem with “gentleman’ agreements” is that they aren’t agreements and the people that make them and the people who make them aren’t gentlemen.
I am surprised that you did not point out that Jack is leaving for a little club who have not won even one European Cup. I mean, you could understand if he left for Forest.
(6 and counting – YNWA)
I didn’t check which Manchester club it was, sorry.
Superb explanation.
Once again, a sportsman showing politicians how it should be done.
Footballers 3 – 0 Tory Establishment
Rashford 5′
F Nelson (og) 15′
Grealish 21′
A more sensible UK government would not have done such a deal at all and would, moreover, have had a much more realistic view throughout of its importance to the EU. Indeed, the UK sees itself as Harry Kane – world class superstar. But it, like him, is no use without the rest of the team and, unlike European Football, there is no real transfer market in economies – especially when they are led by people who don’t understand them.
Also Jack has got the number that Harry thought would be his. Poor Harry. Will Citeh even still want unhappy Harry now they have Jack? They need a 9, not another 10.
As for the UK, they thought they had a release clause, like Jack had, in Article 50. Things turned out to be so much more complicated than that.
The first commercial contract I worked on with a contractor, I was helped by someone who had negotiated the contract. That was the only person on our or the employer’s side who had. With each difficult clause, they would chirp up, “that was not the intent of that clause”, but all we had was the text which both sides had signed up to. We had to live up to the provisions in every clause of the contract.
So when Sir David Frost says “that was not the intent of that, or the whole NIP” if that were the case, the NIP would say what the clause was.
In danger of raking over old coals. But, whenever I think about the deal I think – surely they could not have been that stupid – surely there was some ulterior motive behind the scenes.
Perhaps they were stupid or perhaps the ultimate goal was never ‘sovereignty’ or ‘freer trade’ but the real goal was to entrap the British people – to make them poorer and more obedient/pliable – to make more money out of them.
One economic view is that highly developed economies will ultimately run out of things for those lower down the pile to do. Growth will not go on forever and for everyone. Therefore find some way of keeping them quiet/pliant.
Or perhaps the Brexiteers really were that stupid – but are now looking to make hay out of the mess created.
If I wanted to make the population quiet and compliant I wouldn’t have chosen Brexit. That’s only divided the country and stirred things up.
Brexit has fostered a seige mentality in government which in turn has made illiberal policies popular with half the population. Populist governments don’t need a quiet and compliant population. In fact they usually prefer fervent support to keep the struggle going.
One difference is that it was very clear, at the time the Withdrawal Agreement was signed, that no alternative gentleman agreement was on offer. In fact, the UK is not even trying to argue there was one. Just that the WA is “unworkable”.
I’m curious why you refer throughout to Kane’s club as ‘a London club’, instead of naming it Tottenham, just as you named Grealish’s Aston Villa.
It is explained in the post, if you read it again
When Kane signed his contract, with Spurs riding high and a new training complex and ground in development, he had a reasonable expectation that the club would continue to progress, at least for the majority of the contract. The manager and other key players had previously signed 5 year deals. The club was regularly qualifying for the Champions League. All the components for continued success looked to be in place. It wouldn’t have occurred to him that a year later the picture would look a lot less rosy.
One key reason why Kane didn’t include similar provisions to Grealish is that it is highly unlikely Levy would have allowed them. In the 20 years he has ran the club I’m unaware of any player contracts having release clauses. He wants full control over buying and selling players and such clauses would greatly diminish that. Thus, he was able to sell Berbatov, Modric and Bale for their maximum value.
Additionally, Villa don’t have bitter local rivals who might meet those conditions, whilst Spurs certainly do.
I agree; it’s not clear why agreeing to a release clause makes Levy any better off. If the value is set ludicrously high, a player who wants to leave will try and force that anyway. If the value is set at what seems like a realistic level at the time of negotiation, there is a fair chance that at some point in a 6-year contract, it will turn out to be an undervalue and Levy will have left money on the table – which is not how he got where he is today.
In the end, between two parties with deep pockets and “unseemly” (good heavens!) extra-contractual levers available, the eventual result is surely more likely to be determined by the balance of power than by the text of the contract.
The difference, of course, is that Kane’s recalcitrance will work in the end; the London club will begrudge paying the wages of a player who is refusing to play, and will seek to sell him in order to stop paying his wages and to get some return on their investment.
Whereas Johnson and Frost’s recalcitrance is just met with laughter in Brussels.
There is a similarity, in that Kane has put all his eggs into a Manchester-shaped basket, in much the same way as the Brexiters put theirs into a US-shaped one. Should the Manchester club decide that Kane’s not for them, then good luck to him in finding another suitor willing to overlook his mendacity and capriciousness.
I think the analogy is interesting but not a good fit when comparing to the UK government and Brexit.
A much better fit is if hypothetically Kane had signed with Spurs but all along had quietly said to himself ‘when a better offer comes along I’ll just walk out, I’m such a superpower in the world of football that the fans will be with me and no league authority would dare stop me, after all football needs me more than I need them and what’s a silly pettifogging contract anyway, no one expects them to be followed”.
Brexit has many mothers but a dominant theme was/is that GB is a great power and the ‘sovereign’ equal of the EU and that it does what it likes.
No analogy is exact – that is why they are merely analogies.
But Kane is risking being unemployable because any club taking him on could face the same situation in future. The government is risking much the same thing by being untrustworthy when making a deal.
There’s only one Premier League club in Manchester, the other one being in Stretford.
Correct. I had hoped that under the new Brexit administration, clubs would be banned from using the names of places where there are not physically located, with a Magna Carta exemption for Port Vale.
That’s a lovely piece. A great analogy.
Perhaps the UK government adopts the “gentleman’s agreement” approach to negotiations because it is governing in line with a “good chaps” theory of government. Unfortunately the current variant involves only picking members of its negotiating team from one London club – Drones.
This UK government is behaving with the confidence and competence of a Wooster who has told Jeeves that he has not been picked for the negotiating team as he is merely an expert player and not an English gentleman, and what is needed when negotiating “gentleman’s agreements” is an English gentleman.
Do you foresee much possibility of Harry and Jack appearing in a television commercial, in the near future? With Harry, after having engaged the services of (a purely fictional character) “Baron Frost of Silver-Top” during his contract negotiations, turns to Jack, in his kitchen, who then says
– “If you keep Silver-Top in his current employment, you’ll be playing for Accrington Stanley next season!”
“Harry is reduced to refusing to turn up to training”
Harry begs to differ:
https://mobile.twitter.com/HKane/status/1423678961746337795
I saw that – which came out some time after my post, and the news reporting on which my post is based.
Given he did not turn up for training, and that he does not provide a reason, and that this is plainly evasive PR guff, I will go with the news reporting rather than this bare denial.
The problem with that, as we know, is that football “reporting”, particularly in the red tops, is almost entirely fiction, and that fiction becomes even more outlandish in the close season. There’s a coterie of such “journalists” whose purpose, it seems, is to stir up discord. They’re even known as “the rotters” to the rest of the press pack.
I did think that it would be very poor PR for the England captain, of all people, to simply refuse to turn up to training in order to get his way. It’s evident that the drafting of his contract left something to be desired, if he is citing “a gentleman’s agreement” (which was, after all, the thrust of your post), but I do think that there’s a little more to this situation than is being reported.
(I’d still bank on Harry Kane to secure better terms with the EU than Johnson and Frost did… And no, I’m not a Spurs fan, I’m an Evertonian :-) )
1. I did not rely on ‘red tops’ – there are other news sources, with reporters of good reputation and a track record
2. There is no dispute that he did not turn up
3. There was surprise that he did not turn up and there was no explanation provided
4. There is evidence that Kane is in dispute with his club
5. Kane has not provided any explanation for not turning up, and he has issued only a PR-written bare denial
Taken together, I stand by what I typed
Sometimes dissing the ‘red tops’ is a substitute for critical analysis of the evidence, and not an example of it.
I had previously emailed my MP about the NI situation and when I got his formulaic and questionable response, I sent him your blog, which elicited another such response. One wonders why one bothers…..
“It is an interesting approach to compare the Brexit negotiations to that of football transfers. However, I do not agree that the UK has signed a deal and is now disregarding the contents of it.
I believe that the Government secured an excellent deal for the whole United Kingdom, one that delivered on what the British public voted for in the referendum and in the 2019 General Election.
The Government has tried to operate the Northern Ireland Protocol in good faith, but the problems are significant and growing. There is political turbulence, societal difficulties and trade diversion. As outlined in my previous email, Ministers have proposed three
separate solutions that seek to address the issue of the Northern Ireland Protocol.
It is right that the Government looks to improve on the situation for the betterment of the people of both the Republic of Ireland and Northern Ireland to limit further issues.”