Manchester United Message Board
A question concerning Tevez and Mascherano....
What is the difference between the two deals??? If Mascherano was owned by a third party when his deal with Liverpool went down, then why doesn't United do the same type of deal with West Ham?? And if the deal concerning who gets paid is holding this up, I take it then that Liverpool's money went to West Ham, not the 3rd party owners??? There is much confusion to these damn deals.This topic is deleted.
The thing is too Jim, the part in dispute is Rule U18, which was intended to stop more than one club being owned by the same people. When this was brought up, West Ham argued that it had nothing to do with this particular situation. Yet, later, they pleaded guilty to it, seeming to believe that tearing up the contract gave them the ownership of Tevez.
Yes, Butch I've read the transcript. I doubt the question of enfoeceability of the particular 'transfer clause' because of 'restriction of trade' is relevant to a Court only asked to confirm that the economic rights lie with MSI. Clearly both parties always agreed they were and indeed this was also stated in the summation of the QC.
We have a clear situation that any transfer should be paid to MSI, I don't think there is the slightest doubt in anyone's mind about this, despite the EPL's public stance. However there is still the question of whether MSI can force the transfer to take place before the expiry of the 4 year contract. Here the Court will have to judge whether the spirit of the agreement is still in force despite the potentially unenforceability of several clauses directly pertaining to a transfer. I think. like you. there is every possibility that the Court will take the view that the pre-existing ownership takes precedent, as no money has been paid by WHU for the extended services of Tevez, and crucially Tevez himself wishes the contract to end. In this event, WHU and EPL will be instructed to release his registration.
Jim, this is an extract from the original ruling agaisnt West Ham ..
By clause 1, West Ham and Tevez acknowledge and confirm that the economic rights of Tevez are owned exclusively and absolutely by MSI and Just Sports Inc (the companies). In passing we note that those rights are said to have been transferred to the companies by an agreement dated 7th February 2006. We have not seen that agreement.
By clause 2, Tevez fully acknowledged that the companies had the sole, exclusive and unilateral right, upon serving written notice to the club during the January transfer window, to terminate his contract with West Ham upon payment to the club of £2 million.
By clause 5, the companies have the unilateral option to exercise that right of termination during any subsequent UK transfer window for the sum of £100,000 payable to the club "without any right of objection from the club or from the player", words that do not appear in clause 2 but by clause 4, West Ham, upon receiving such notice and the £2 million, had no right of objection.
By clause 6, Tevez and West Ham "irrevocably declare and confirm that only the companies may exercise their right of termination which cannot be exercised directly by the player or by the club directly or any other third party".
It is clear to us that clause 6 has to be read in conjunction with both clauses 2 and 5.
By clauses 7 and 8, Tevez and West Ham have to promptly inform the companies of any and all circumstances which might lead to the transfer of his federative and economic rights.
By clause 9 "any sort of transaction related to the player's rights shall only take place pursuant to the companies' written instructions". Further, the club were not "to vary, amend, avoid, repudiate or terminate the employment contract or any of its terms without the prior written consent of the companies".
By clause 10, West Ham were not to transfer or otherwise dispose of the federated or economic rights of Tevez, offer so to do, enter into any discussions in respect thereof or hold themselves out as having any authority so to do.
The situation here is that the QC on the original hearing between WHU and EPL said that he found some of the arguments made by WHU's lawyers about particular clauses regarding the option of MSI to transfer Tevez ( for which they had paid money)'carried some weight'. He didn't say they were unenforceable, no court has siad that. But WHU, emboldend by that comment have believed since then that those comments gave them the sability to tell the EPL they had terminated the whole agreement because those clauses 'restricted trade' ( their as yet unproven argument).
The High Court will judge whether the contract as a whole is lawful, it may judge those particular clauses are indeed unenforcable, but also conclude they do not prejudice the spirit of the contract as a 'one year loan'. As you say even if the contract is unlawful it doesn't mean 'ownership' has changed hands. however it could lead to MSI having to make some payment to WHU to curtail the '4 year contract' that WHU say they have. I guess this would potentially get WHU and EPL off the hook vis a vis Sheffield.
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Ah yes, on loan from MSI, a 3rd party, a deal that the EPL are about to contest ( with WHU) in HIgh Court , is not allowed in English football. Only of course it does, not just with Mascherano but also one or two players at Portsmouth for instance. Oh what a glorious mess the EPL have made for themselves. I would imagine the Sheffield lawyers are getting their case ready as we speak to sue for £50m.
I think you can read it everywhere now.
The EPL have made the 'fee to WHU' stipulation a problem for themselves, as they think this 'proves' ownership in any dispute with Sheffield. There is nothing whatsoever in the EPL rules and regulations that says what a club should or shouldn't do with transfer fee received. There is therefore nothing to stop WHU coming to a sensible agreement with MSI on slitting any fee received from United, except for the EPL's stupid, ill-advised instructions to WHU in fear of a Sheffield backlash. Now they face 2 high court cases, one from MSI and one from Sheffield in due course.
They must surely take advice to 'do a deal' before this happens?
I did have it in my mind to say that if I were MSI, then CAS would only have been an option whilst still having the fallback of going to the courts with the advantages being speed and costs.
The way the EPL are acting is that they will not tolerate an agreement to compensate MSI out of court. That path would be tantamount to splitting the fees from United in a manner not acceptable to the EPL. The EPL have forced themselves into a corner whereby, they will only allow an 'official ruling' ie Courts, FIFA or CAS. Daft, but that's the way I read it.
What's the source to these snippets ?
And a couple of interesting links showing WHU's change of heart on the question of ownership:
Dated 5th Dec 2006
and 7th Apr 2007
... assuming of course, that Sky Sports didn't make all this up.
i forget what the technical term is (i studied this at uni but it was a few years ago), but terms in contracts can not be enforced if they are judged to be unfair. west ham believe some of the clauses in their contract with MSI are unenforcable, and so have chosen to ignore them. they are perfectly within their legal rights to do this if the terms are indeed unenforcable.
how anyone can state as fact that west ham are clearly in the wrong and are aware that they are in the wrong, without having seen the contracts (or having the legal knowledge to make an informed opinion) is ridiculous. west ham might be in the wrong or not, no one knows. and its certainly not going to be as clear cut as people make it out to be.
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Unfair contracts were mainly I believe to do with cases where the 2 contracting parties were not of similar stature (as legal entities), essentially that one's a minnow and that this party really had no option but to enter into a contract which included unfair punitive damages or the like.
From memory a majority of these cases were exemplified in the one where only way out of some remote island was to use the services of the only available ferry company, who were unscrupulous in the way they worded their contracts - often in very small print or in places where they were well hidden.
I don't believe those conditions prevail here.
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