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£50 million down the drain, as Tony Martial scores again?
As the Premier League’s transfer window deadline approaches, Solicitor and FA Registered Intermediary Michael Embra examines one of the biggest summer transfer sagas and the options available to both parties.
Summer of Discontent
Manchester United’s September 2015 capture of Anthony Martial made him British football’s most expensive teenager (a record fee of £36 million with provision for a further £22 million in add-ons was agreed for the winger). Martial’s arrival from AS Monaco was seen as major coup for the Red Devils who fended off fierce competition from Premier League rivals Manchester City, Chelsea and Arsenal for the 19 year old Frenchman’s signature.
However, three years on, Martial’s Old Trafford career is widely speculated to be nearing its end. Last week the player was fined £180,000 for his refusal to return to Manchester United’s USA pre-season tour, following his early departure to attend the birth of his second son in Paris. Martial’s agent Philippe Lamboley in June 2018 openly stated that he believes the time has come for his client ‘to resume his career’ away from Old Trafford, given Martial has only started 18 of United’s 38 Premier League games, completing 90 minutes on just five occasions during the 2017/18 campaign.
Jose Mourinho has confirmed that he is open to Martial’s departure so long as it is not to a Premier League rival, however the Old Trafford hierarchy is reportedly reluctant to cash in on the young talent they have invested around £52 million in to date. With only one year remaining on his current deal (although the Red Devils do have the option to trigger a further one year extension to 2020), Manchester United will have to tread carefully given rumours of interest from AC Milan, Bayern Munich and Tottenham in the French international. The extent to which this interest may materialise given United’s alleged £80 million valuation of player remains to be seen.
So, what are the mechanisms currently available to both the players and clubs under the FIFA’s Regulations on the Status and Transfer of Players (RSTP)? Below we evaluate if these may enable the former Olympique Lyonnais academy star to ‘resume’ his career.
Section 13 of the RSTP states that a contract may only be terminated upon expiry or by mutual agreement. In reaching a mutual agreement, United’s primary considerations would undoubtedly take into account:
- their initial investment in the winger
- the salary and bonuses paid to him over the last three seasons
- his respective market value when viewed alongside other players of his stature in Europe’s top leagues.
In the absence of a pre-determined release clause in his contract, Martial would likely have to foot a bill of between £60-£80 million in order to bring his time at Old Trafford to a conclusion, given his contract will not expire until the summer of 2019 at the very earliest. Clearly there would be nothing preventing interested parties rewarding the 22 year-old Frenchman with a handsome signing on fee and an improved salary as a free agent; but it is highly unlikely that Martial would take such a drastic step to leave Manchester United without any guaranteed certainty so close to the UK transfer deadline.
Should Martial fail to reach a mutual agreement with the Red Devils prior to midnight on Thursday 9th August it is unlikely that he will be able to rely upon Sections 14 or 15 of the RSTP for help in his Old Trafford exit either.
Section 14 states that a contract may be unilaterally terminated without consequence if there is just cause.
There is no exact science to determining ‘just cause’ and this is typically viewed on an individual case by case basis by the relevant governing authority. In this situation, the regulations are perhaps more in United’s favour if anything stating that if behaviour is in violation of the employment contract terms and it should persist or if numerous violations are cumulated over a certain period of time, then it is likely to be sufficient grounds for unilateral termination.
Another valid cause for termination may be if there was a sporting just cause under Section 15 of the RSTP. Typically this occurs where a player appears in fewer than 10% of matches (aside from injury) during a season. With Martial participating in just under 50% of United 2017/18 Premier League fixtures, it would be fair to concluded that currently there is no just cause, sporting or otherwise, by which Martial may exit Jose Mourinho’s squad. In any event, the French winger is outside of the 15 day period following the last official match of the 2017/18 season by which he must action termination under Section 15.
The last opportunity for unilateral termination by either party under Sections 14 or 15 would be midnight on Thursday, given Section 16 of the RSTP states that a contract cannot be unilaterally terminated during the course of a season and United’s 2018/19 Premier League opener kicks off at 8pm on Friday against Leicester City.
The consequences of either party terminating the contract without just cause would be that whoever was deemed to be in breach would have to fork out compensation pursuant to Section 17 of the RSTP. Furthermore, if Martial were found to be in breach he may be subject to sporting sanctions, as would the Old Trafford giants if they equally were found to be in breach. Interestingly given the alleged power dichotomy between players and clubs, Section 17(4) states that if the club were to be found in breach then “It shall be presumed” that the club has “induced that professional to commit a breach.”
Clearly the charismatic winger’s signature, whose performances initially under former United supremo Louis Van Gaal set alight the Premier League following his arrival from the French Rivera, will continue to generate interest from Europe’s elite clubs. United’s English top flight rivals will need to get any move for Martial across the line before midnight on Thursday to secure his services for the upcoming season. The Red Devil’s continental competitors have the luxury of swooping much later for the Frenchman (Italy’s summer window closes on 25th August, and both German and Spanish clubs have the traditional 31st August deadline to adhere to). Martial could still yet be the most high profile example of how the Premier League has disadvantaged itself on the global transfer stage with the implementation of a shorter registration period.
Nevertheless Mourinho’s reluctance to offload the player to a Premier League rival, United’s £80 million price tag and Martial’s lack of options as set out above to engineer a move away from Greater Manchester would suggest it is increasingly likely that his transfer, to another Premier Club at least, may not be as imminent as expected.
January 2018’s transfer window was arguably a display of player power with Diego Costa, Virgil van Dijk, Ross Barkley and Phillipe Coutinho all putting their August 2017 deadline day frustrations behind them and switching employers. Should Martial remain as a Manchester United player for United’s short trip across Lancashire to Burnley on the 1st September, perhaps the newly shortened 2018 summer window can be portrayed as a show of strength by Premier League clubs in refusing to cave in to player demands, irrespective of whether their European rivals pounce at the end of the month or not.