THERE was a sudden outbreak of optimism about the future of Scottish football back in February when the ‘Cooperation System’ proposal which had been put forward in the Transition Phase report that was published by the SFA last year was accepted by SPFL clubs.
Hopes are now high that allowing homegrown players who are in the 16-to-21 age group at Premiership outfits to move freely between their parent clubs and lower league clubs on loan during the course of a season will increase the competitive game time our outstanding prospects get at a critical stage in their development.
There is, too, confidence this will ultimately ensure that more aspiring professionals make a successful step up into the senior game, and potentially the national team, in future than is currently the case.
Will another of the key recommendations which Andy Gould, the SFA chief football officer, and Chris Docherty, the head of elite men’s strategy, floated in their comprehensive paper get the go-ahead?
Gould and Docherty warned the ‘entire business model of the academy system’ in Scotland was being threatened by English clubs, who can no longer bring players from mainland Europe who are under the age of 18 into their academies due to Brexit, signing kids for training compensation sums when they turn 16.
They pointed out that countries of a similar size on the continent allowed clubs to ‘protect the registrations’ of players under the age of 16, justify the investment which has been made in their development and stop early migration to foreign countries.
They concluded that Scottish clubs need to move into line with their counterparts across Europe going forward. So will that suggestion also get the green light in the coming months? It very much depends on whether the Competitions and Markets Authority (CMA) decide to investigate how young players are both registered by and move between elite clubs in this country. Potentially, they could scupper any hope of replicating what happens elsewhere on the continent.
The Children’s and Young People’s Commissioner Scotland and youth football campaigners Real Grassroots are convinced the current SFA and SPFL protocols exploit kids and break competition law. They lodged complaints with the CMA about them back in December. That surprising move was the latest development in what has been a long-running saga.
Real Grassroots, an organisation which was set up by Willie Smith of Hillwood Boys Club and Scott Robertson of Musselburgh Windsor due to their concerns about the state of the grassroots game in this country, lodged a petition entitled Improving Youth Football in Scotland at Holyrood in 2010.
The Public Petitions Committee praised the SFA and SPFL for the changes they had implemented during the years which petition PE1319 – the longest running in the parliament’s history – was being considered when they released their final report back in 2020. However, the committee at the Scottish parliament recommended ‘very strongly’ that multi-year registrations for players under the age of 16 in the Club Academy Scotland (CAS) set-up should be abolished when its findings were made public.
The commissioner argued they breached six articles of the United Nations Convention on the Rights of the Child – which MSPs had voted unanimously in favour of incorporating into domestic law three months earlier.
That registration has since been amended slightly. However, a child at a CAS elite club still signs a two-year registration when they turn 15 which they are unable to be released from unless the club agrees or their appeal to the Young Player Wellbeing Panel is successful.
The SFA have brought their procedures in line with FIFA statutes following feedback from the children’s commissioner and reimbursement of training costs is now only payable when a player signs their first professional contract. But the SPFL rules stipulate that a “development contribution” is still due.
Frustrated by the intransigence of both governing bodies as well as the failure of MSPs to introduce either statutory legislation or independent regulation, the children’s commissioner and the campaign group enlisted the services of London legal firm Gunnercooke and turned their attentions to the CMA.
Mahesh Madlani and Alexander Waksman of Gunnercooke were asked to take a look at the case by Nick Hobbs, the head of advice and investigations with the children’s commissioner, and they were shocked by what they discovered. They felt there were strong grounds to challenge four aspects of the SFA and SPFL regulations.
The CMA has stated they will not be pursuing the complaint at this time due to their stretched resources. But Anas Sarwar, the leader of Scottish Labour, has written to them urging them to act. Madlani and Waksman remain ‘optimistic’ they will take the case on.
They believe the ‘no-poach’ and ‘no approach’ rules, along with ‘implausibly high’ development contribution fees which clubs are liable to pay before a player turns professional, breach competition law.
“It became pretty clear that there is a very serious violation here,” said Waksman. “As we looked into it, it confirmed our initial impressions. It was very clear there was a no-poach agreement. Clubs had agreed to set limits on how many players they could recruit from each other.
“Our view is that the rules in question – no-poach, no-approach, development contribution – constitute a cartel both individually and taken together. They effectively allocate certain players to certain clubs and exclude competition in recruitment, akin to a market-sharing agreement.
“We decided a competition law challenge was the way to go. After we started looking into it, we found a raft of European court case rulings which confirmed that a no-poach deal is illegal, inside or outside of sport. The Diarra case confirmed our thoughts as well.”
The European Court of Justice ruled last year that FIFA transfer regulations had restricted the freedom of movement of Lassana Diarra, the former Chelsea, Arsenal and Portsmouth midfielder, and world football’s governing body was forced to change its rules as a result.
Madlani has heard of many cases of kids who want to leave the pro-youth set-up being prevented from either returning to boys’ club football or joining another professional club because of what they have described as the ‘implausibly high’ development contribution.
“One young player wanted to leave his club because he wasn’t getting game time and he wasn’t happy with the facilities, something we have heard from a lot of players,” he said.
“So he went in with his parents and said that he wanted to go at the end of the season. The response was, ‘You can’t leave, we’re not releasing the registration, you’re not going anywhere’. He was 15 or 16.
“But one of his parents was quite well known to the public, was a bit of a celebrity. They turned around and said, ‘If you don’t release his registration I’m going to go public on this’. So they backed down.
“That is crazy for two reasons. One, it seems to suggest that clubs know they can’t do this. Two, the ordinary member of the public isn’t going to be able to exert that sort of power.
“At one point, the club said, ‘We might let you leave if you give us thousands of pounds’. The parent was famous enough and wealthy enough to litigate that. They could go to the media. They could cause a s***storm. The vast majority of people are not in that position.”
Madlani added: “The SFA say that the development contribution doesn’t exist. They say, ‘We don’t have this rule’. That is true. It’s not in their handbook. But it is in the SPFL handbook. They have a rule that effectively says if a 12-year-old wants to change clubs then money must be paid.
“The SFA are saying training compensation, as per FIFA rules, as per the SFA handbook, is only payable when the player turns professional. But the SPFL have a different rule and they just refuse to change it. They could say, ‘We have seen the error of our ways, we will change it’. But there is a radio silence.”
Waksman continued: “On the face of it, the registration is for a fixed period of time. However, SPFL rules give the current club a right to charge the development contribution before a player can move, even after the registration period has run out.
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“In that case, the player leaves the current club, but cannot sign for a new club unless the development contribution is paid. Since clubs aren’t willing to pay thousands of pounds to take on a youth player who may never turn professional, a club’s right to demand a development contribution effectively serves as an outright block on youth players transferring between academies.
“We, and grassroots coaches, have heard from parents of kids under the age of 16 who are facing these issues . Clubs are actively demanding the development contribution the SPFL rules allow them to charge.
“If the former club has met certain criteria, such as offering the player a new registration, then the player cannot move unless the new club agrees to pay the development contribution or the old club waives the fee.”
Both Madlani and Waksman reject the suggestion that these SFA and SPFL rules are required so that Scottish clubs avoid losing players they have worked with for years and have invested thousands of pounds in for nothing and continue to plough money in youth development and training facilities.
“We actually found the restrictions were having entirely the opposite effect,” said Waksman.
“What they’re in fact doing is showing clubs they don’t need to bother improving their facilities because if the players didn’t like it there then there was nowhere they can go.
“We heard stories of top clubs where the training facilities didn’t have toilets on site, didn’t have showers or changing rooms. So there’s really no argument here that these rules are necessary to promote investment in youth football. They’re actually having the opposite effect and driving down youth investment.”
Waksman is convinced that some CAS clubs hold on to their youth players’ registrations and prevent them from moving elsewhere simply because they are wary about them being successful at another club.
“This is not just about the clubs holding out for money, it’s also about clubs not wanting to release a player who, even though they didn’t want to give them a professional contract, proves them wrong and turns out to be really good,” he said.
“They don’t want to see them walk down the road to a rival. They would much rather mothball that player and see them drop out the game than see them go to a rival club, pick up a professional contract and turn out to be a star player.”
The Competition and Markets Authority was set up in 2013 when the Competition Commission and Office of Fair Trading were abolished and its responsibilities include investigating mergers, bringing criminal charges against individuals who commit cartel offences and enforcing consumer protection legislation.
So why on earth would they want to get involved in Scottish youth football? And what could they possibly do? Do Madlani and Waksman seriously believe that they can and will intervene?
“They can force change very easily,” said Waksman. “The CMA has full power to apply competition law. That includes the ability to issue orders requiring organisations to change their practices where those practices violate competition law.
“For example, if two companies enter into a cartel with each other, the CMA can order those companies to bring their cartel to an end. If an organisation is abusing its dominant position, the CMA can give general and specific orders about how to bring that to an end.
“There is a line of competition cases that is very regular going back to the 1980s which says that FIFA, UEFA, national associations and sporting organisations are subject to competition law. There is no issue in this case about whether the SFA and SPFL come under the CMA’s jurisdiction, they absolutely do.”
Waksman added: “We are doing this completely pro bono, totally for free, we will not bill anyone. The reason for that is we feel so strongly about it. There are some cases which come along with no money behind them. The Real Grassroots guys are not going to be paying London law firm hourly rates.
“We just think, ‘This is so wrong, this is so intolerable, someone has to do something’. We have a well-established competition practice and can do something. It takes a lot of work. But it is about giving children the opportunity they deserve.”
An SFA spokesperson said: “We have been in dialogue with the CMA and will continue to monitor our policies and procedures in line with FIFA regulations.” The SPFL were approached for comment.
