International game under threat over player liability

The recent attack on the Togo team coach by Angolan rebels and the high-profile, long-term injury in November of last year to Arsenal striker Robin Van Persie while on international duty with the Netherlands, has focused the minds of clubs and lawyers on this increasingly tricky problem.

The Dutch F.A. appears not to have insurance cover in place to compensate clubs for any losses suffered, such as wages and medical bills. It has responded to Arsenal’s claim for compensation and its threat of legal action with scorn, pointing towards an agreement currently in place with F.I.F.A. that means it is not compulsory for any national association to take out these policies.

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Unfair Playing Field?

F.I.F.A.’s ‘Regulations on the Status and Transfer of Players’, annexe 1, states: “Clubs releasing a player in accordance with the provisions of this annexe are not entitled to financial compensation…. The club with which the player concerned is registered shall be responsible for his insurance cover against illness and accident during the entire period of his release. This cover must also extend to any injuries sustained by the player during the international match(es) for which he was released.”

For some clubs it is not practical to take out cover for financial reasons. For example, could the Togolese F.A. afford to pay the premiums to cover Emmanuel Adebayor, who was on the team coach in Angola, and reportedly earns a vast amount at Manchester City?

“Countries such as the Netherlands could afford to have these sorts of policies in place, but until it is compulsory to do so, many will resist spending money on potentially very large premiums,” explained Ian Cater, a dispute resolution lawyer at London-based law firm Denton Wilde Sapte L.L.P.

Clubs are therefore likely to remain liable for injuries sustained by their players while away on international duty.

It is a system that appears unfair to Arsenal manager, Arsene Wenger.

“We cannot sit [by] and lose all our players for the season and say ‘thank you very much,'” Mr. Wenger told U.K. newspaper The Observer in December.

“I am not against the national teams. But we sit here and they can do what they want,” he said. “The players are paid by their clubs and get injured playing for another team. I am happy if England wins, but if we lose because England wins nobody cares about me. There is something completely wrong with the system. I want the power to be rebalanced more in favour of the clubs,” he added.

It is a ‘vexed issue’ to which there currently appears no appropriate answer, said Paul Mulderrig, a sport injury specialist and manager of Rawtenstall, Lancashire-based Mulderrigs Solicitors Ltd.

And it is of increasing importance given the high wages and values of players in the major European leagues today, he added.

The situation is particularly troublesome because some associations, such as the English F.A., do take out insurance while others do not. This means it is uncertain which players will and will not be covered by their association whilst on international duty, he explained.

Had Van Persie been English, Arsenal would have been entitled to compensation, as Newcastle United was when Michael Owen was injured playing for England in 2006.

The situation seems further muddled as F.I.F.A. and U.E.F.A., the European football federation, will compensate clubs if a player is injured whilst playing a World Cup or European Championship finals game, but not any qualifying or friendly match.

These sums are not high enough to cover the full wages of many top stars, but do soften the blow for clubs, explained Ian Cater.

It is not known if Arsenal has insurance in place to cover their losses suffered from the injury sustained to Robin Van Persie.

However it is almost certain that they will have cover in place, as the current F.I.F.A. regulations place the onus on them to cover their players whilst they are away on international duty, said Mr. Cater.

But this remains a grey area and begs the question why clubs should be forced to insure their players, at increased costs, when they are required under F.I.F.A. rulings to release players for international duty.

“Generally if you buy a total or temporary disablement policy and it was bought by, say, Chelsea it would cover losses whilst you were playing for Chelsea. If your player then goes away on international duty it wouldn’t generally cover that unless you take out for the extra cover. And Chelsea can quite rightly say if you are away on international duty someone else should insure and compensate us if something goes wrong,” said David Bruce, head of the insurer Hiscox’s specialty division.

Because footballers are humans and we have become accustomed to the tradition of international football, people look at this issue from a “skewed” perspective, said Mr. Mulderrig.

“If they were race horses, which effectively they are as professional athletes, you would not expect a racehorse owner to lend his animal to someone without that person taking on the risk and responsibility. So where these football clubs have these very valuable and prized assets, if you let them go out and do a job, essentially for another employer, surely that employer has got to start carrying the risk?” he argued.

“It is all very well saying he has been selected to represent his country, but who is going to cover my (the clubs) loss if this man comes back damaged or why should I pay for that risk? It is a fair enough question and it is clearly one that needs to be addressed. So that everyone knows, and are happy, with where they stand,” he added.

Rights & Responsibilities

One option is for clubs to refuse to release their players. However this would be problematic, as under F.I.F.A. regulations clubs are not in a position to refuse the release of their players.

F.I.F.A. regulations on the status and transfer of players state that if clubs fail to release its player F.I.F.A. may impose ‘disciplinary’ measures. There is also a specific provision that states that F.I.F.A. may request ‘the association to which the club belongs to declare any matches in which the player took part (during that period) to have been lost by that club’.

“That would be a very dangerous and counter-productive thing to do. Alternatively, the club may keep hold of the player and simply not play him in club matches during this period. This would ensure that he is effectively wrapped in cotton wool and kept away from the international environment where he is out of the club’s control. In that situation there is not a specific punishment provided for. But, under F.I.F.A. rules the ‘disciplinary’ measures are deliberately left open,” said Mr. Cater.

“[If] one club [was] to get away with it, others would follow. If this was to happen, it is possible that the whole fabric of international football could quickly unravel. In this situation I would imagine F.I.F.A would impose very heavy fines and/or consider banning the club from transnational tournaments, such as the Champions League. They may also put pressure on national associations to ban the club from national cup competitions or deduct league points,” he added.

To prevent any major revolt from clubs and to appease their concerns one option would be the formation of an insurance pool or mutual.

“This issue needs to be taken on board at world level where perhaps F.I.F.A. or an appropriate body say we are going to organise a mandatory world wide scheme whereby all national associations pay in their proportion or take out insurance to cover any loss of wages or a player’s value to his club. So then if a player is selected for his country then that is fine. The rules say that he has to be allowed to go and the clubs are happy to release him, but if he comes back damaged you have the benefit of a policy in place,” said Paul Mulderrig.

Another option for clubs is to get together as a group, via the powerful European Club Association, and refuse the release of players until issues surrounding compensation and insurance cover are resolved, several experts suggested.

However F.I.F.A. would be forced to take very serious action in this case as it is clearly in their interest, and arguably the game as a whole, to defend international football, said Mr. Cater.

Perhaps a better solution would be for clubs to come together and lobby for a system, such as the one in place for finals matches, that would see compensation available for all international games, he said.