Notes of Cases
| Published date | 01 March 1964 |
| Date | 01 March 1964 |
| DOI | http://doi.org/10.1111/j.1468-2230.1964.tb01024.x |
NOTES
OF
CASES
RETAIN
AND
TRANSFER SYSTEM OFFSIDE
IN
1966
the Association Football World Cup will be held in
England.' As a result of the England team's successful close-
season Continental tour and their victory over the Rest of the
World in the Football Association Centenary match, some euphoric
visions of English success are already being entertained.2 Should
such an improvement over English performances in recent Inter-
national competitions
s
come
to
pass the decision of Wilbexforce
J.
in
Eastham
v.
Newcastle
United
Football Club,
LtdP
may have
proved a significant factor.
Professional football in England and Wales centres
on
the
Football League, which consists of ninety-two clubs playing in
four divisions,s with promotion and relegation between the divisions.
This represents a very much wider spreading of the available talent
than takes place in most Continental and South American leagues.
Although First Division clubs are obviously stronger than Fourth
Division clubs the difference is a good deal less than one might
expect and Fourth Division clubs frequently beat First Division
clubs in the F.A. Cup and the Football League Cup.
In a free economy one would expect all the best players to be
drawn to the biggest and wealthiest clubs, which are those situated
in
areas of dense population, where large crowds can be drawn to
watch matches and to pay substantial
sums
in gate money. This
process has taken place to a very considerable extent but its
progress has been checked by the adoption by the Football
Asso-
ciation and the Football League of a restrictive scheme for the
employment of players.
1
Strictly speaking this will be the final stages of the World Cup. Eliminating
contests
on
a
regional basis will be held to reduce the competitors to the
final sixteen. As the host country England will be entitled to a place in
the last sixteen.
2
English sports writers and commentators include a jingoistic element which
confidently predicts English successes in the most improbable
circumstance^
and
as
confidently ascribes failures to
''
late-night parties,"
"
lack
of
fight
and all manner
of
original sins.
8
Although England
is
historically the home of Association Football, they have
never won the World Cup. (England, Scotland, Wales, Northern Ireland and
Eire all compete separately in this competition.)
4
[1963]
3
W.L.R.
574;
[1963]
3
All E.R. 139. The report in the
Weekly Law Reports is much superior. There are a number of omissions
in the report in the All England Law Reports.
5
There are twenty-two teams in each
of
the top two divisions and twenty-four
teams in both Division
I11
and
IV.
210
MARCH
1964
NOTES
OF
CASES
211
This scheme involves the combination of two systems, the
retain system and the transfer system.B The basic outlines of these
systems are as follows. Under the retain system all players in the
Football League have to be registered by a club with the Football
Association. Once a player has been
so
registered with one club
he cannot play football for another club unless the club with which
he is registered agrees to transfer him. This restriction is virtually
world-wide in scope because of interlocking agreements with other
national governing bodies through the international governing body
F.1.F
.A.'
Under the system in force at the time of the dispute in this
caseY8 Football League clubs only entered into yearly contracts
with their players. At the end of the year clubs were not bound
to offer the player a new contract but they could either put the
player on the retain list at a minimum wage of
2418
a year
or
place him on the transfer list.
If
placed on the transfer list, he
could either be given a free transfer
or
a
transfer fee could be placed
upon him. This fee was the sum which would have to be paid by
a
transferee club to the transferor club for the services of the
player.g
If
transferred a player would be registered by his new club
and the same rules would come into force to govern his relations
with
it.
Machinery was provided by which a player could appeal
to the management committee of the Football League both against
the size of the wage he was offered on retention, which might be
too small,
or
the transfer fee placed upon him, which might be too
1arge.l"
The plaintiff
,
George Eastham, became a professional footballer
with Ards in Northern Ireland and was transferred by them to
Newcastle United in
1956.
He signed a series of yearly contracts
with Newcastle United, the last being signed on June
18, 1959,
for
a
period ending
on
June
30,
1960.
In December
1959,
he asked
to be put on the transfer list. This request was refused and
renewed requests were similarly refused. In April
1960,
the plaintiff
was informed that he would be retained for the season
1960-61
at
his current wage. Further transfer requests continued to
be
made
and refused up till June
30,
1960,
when the contract with Newcastle
United expired. The plaintiff did not re-sign but moved to the
6
These are discussed by Wilberforce
J.
[1963]
3
W.L.R.
574
at pp.
577-579;
[1963] 3
All
E.R.
139
at pp.
143-146.
7
Only Australia is mentioned
in
the judgment
as
being outside the scope
of the restrictions among football playing countries. Australia is not one
of the major football playing countries.
8
Between the dispute and the trial,
a
period of some three years, substantial
improvements in the players' terms of contract had been negotiated by the
Professional Footballers' Association, principally the abolition of the maximum
wage of
€20.
These improvements did not however strike at the basis
of
the retain and transfer system.
9
No
part of the transfer fee went to the player at the date of the dispute.
A
very small part of the fee now goes to the player.
10
Most such appeals were in fact successful. See
[1963] 3
W.L.R.
574
at p.
579; [1963] 3
All
E.R.
139
at p.
148.
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