Introduction: Loan transfers and football

Temporary transfers, or “loans”, are very common in modern football. Normally, they allow small clubs to sign better players without paying vast sums of money and are a way for clubs to place their young upcoming stars in a competitive team where they will experience regular first team football. Some loans are a success (like Philip Lahm), others not so much, but there are also other ways for loaning players; some loans stipulate that the player must be bought at the end of the loan which allow clubs to effectively “buy now, pay later”[1]).

There is another, often overlooked, important dimension to loan transfers. Players on loan are often prohibited from playing against their parent club, either by league regulations or private clauses. A restriction like this for teams that depend on loans, is very likely to effect the outcome of matches between that club and any parent club. The idea of loan players playing against their parent clubs does raise some fair-play and integrity concerns. Might a loan player deliberately play poorly so as not to upset their parent club’s management structure? Or even worse, might a parent club secretly demand a loan player plays badly if they want a future at the parent club? To understand the issue further, let’s compare different national approaches on this matter.

“Parent Club” restrictions across national leagues

Not every national league regulates this matter in the same way. Some explicitly prohibit loan players playing against a parent club, while others do not attempt to regulate and others still defer to the judgement of the club.

  1. Leagues with regulations that prohibit a loan player playing against their parent clubs include the English Premier League[2] and the Portuguese Primeira Liga[3]. In these leagues, clubs have no say about the matter and are restricted to accepting the regulations that no loaned player shall face their parent club.
  2. On the other hand, this rule is not present in many other leagues, such as La Liga (Spain)[4] and Ligue 1 (France)[5]. This situation prompted the use of so called “fear clauses” by some Spanish clubs, prohibiting on-loan players from facing their parent club, unless a big fee, often unsustainable, was paid to that club. Sometimes, clubs use clauses that completely forbid the player from playing against his parent club, without the option to pay for that right[6];
  3. A curious third case is Brazil, where the “Confederação Brasileira de Futebol” acknowledges, in its regulations, that loan clauses regarding a player facing his parent club are a matter for the clubs to decide privately[7]. Not long ago the rules stated that clauses forbidding players from facing their parent clubs were not valid, but due to the proliferation of “gentlemen’s agreements”, difficult to prove, the rules were changed[8].

So these are some of the common approaches taken by different leagues, but what do FIFA and UEFA say about the matter?

The FIFA and UEFA approach

FIFA’s Regulations on the Status and Transfer of Players (or “RSTP”) play an important role in worldwide football[9]. In these Regulations Article 10 specifically relates to loans but does not deal with the question of whether a loan player should be able to face their parent club. However, Article 18bis of the RSTP does shed some light on this issue. This article states that:

No club shall enter into a contract which enables the counter club/counter clubs, and vice versa, or any third party to acquire the ability to influence in employment and transfer-related matters its independence, its policies or the performance of its teams”.

While this article was originally directed at third party ownership, the current wording is perfectly clear and accommodates the situation of a contract between club and counter club in which the first club acquires the ability to influence the second club’s team performance[10]. Truth be told, when one club loans a player to another club and in doing so enshrines a clause that forbids that player from facing his parent club (or demands a big sum of money for that to happen) there can be no doubt that the loaning club has de facto influence on the team the other club can field. The parent club can therefore influence the other club’s sporting performance, even if just for one or two matches (which is irrelevant in the eyes of Article 18bis). This means that “fear clauses” could be considered as a violation of the RSTP.

The same cannot be said of league rules that do not allow players to face their parent clubs. In this situation, no club has any influence and, even if we were to argue that it is now the league that can influence the sporting performance of a club through its regulations, Article 18bis does not seem to prohibit that. There is no “contract” in this situation and there are many other eligibility and squad registration rules that influence which players a team can field and that kind of rule is not considered a violation of the RSTP. FIFA’s focus seems to elsewhere on the rising number of international loans[11].

Regarding UEFA, the most important applicable rule is Article 5.01, from the Champions League regulations, which reads as follows:

No club participating in a UEFA club competition (i.e. UEFA Champions League and UEFA Europa League) may, either directly or indirectly: (…) have any power whatsoever in the management, administration and/or sporting performance of any other club participating in a UEFA club competition.

The rule is very similar to Article 18bis of the RSTP and the consequences are basically the same, even if confined to the UEFA Club Competitions[12]: clauses between clubs that forbid or restrict a loaned player from playing against his parent club are not enforceable when these clubs meet in UEFA club competitions.

UEFA made a statement about this matter, in relation to Thibaut Courtois, when the goalkeeper was loaned to Atlético Madrid and had to face his parent club, Chelsea FC, in the 2013-2014 Champions League semi-finals. Courtois had a clause in the loan contract that prohibited him from playing against Chelsea unless a fee of 3 million euros was paid[13], however, UEFA was quick to state that any provision in a private contract between clubs which might function in such a way as to influence who a club fields in a match is null, void and unenforceable so far as UEFA is concerned.[14] This statement was pretty much a confirmation by UEFA that such a clause violated their regulations on integrity of the competition and Courtois was free to play and Atletico promptly beat Chelsea 3-1. All in all, both UEFA and FIFA regulations advocate for a sport without “fear clauses”.

Comment: are these rules and clauses justified

In my opinion, these rules certainly aim to safeguard a competition’s integrity, render “fear clauses” inoperative and prevent players from appearing in an “awkward” situation against their own clubs, but they bring unwanted consequences. They strip small clubs of what arguably could be their best players in important matches; disregard the fact that a professional football player has ethics and values and, as a professional, should be allowed to “do his job” freely. The FIFA RSTP and UEFA Regulations turn loans into “win-win” deals for parent clubs because big clubs know they can’t be hurt by their own players, however the Leagues are yet to enforce this interpretation of the rules.

Naturally, the discussion is still very much alive and open and the rise of loan transfers will only amplify it. However, due to the reasons stated, I cannot help but feel that loan players should depend only on the choice of their manager, not on a set of regulations that erode the competitive nature of the game, disregard their reputation as professionals and undermine the uncertainty of the outcome, which is one of the most important elements in sport.

Tiago Patrão Silva

Tiago is a recent graduate from Lisbon University’s Faculty of Law and is interested in many legal areas but has a special taste for sports law, labour law, administrative law, fiscal law and contract law. He is currently pursuing a career as a lawyer in Portugal and keeps up with the development of sports like football, handball and cycling.

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References

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