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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