Contract and Control in the Entertainment Industry

Dancing on the Edge of Heaven

Steve Greenfield, Guy Osborn

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781351948852
• Edition: 1
• Topic: Law
• Subtopic: Media & Entertainment Law
• Index: Law

This book examines the contractual relationships of creative artists within a number of areas of the entertainment industry. Whilst it focuses specifically on football, cricket, boxing and music, developments within other parts of the entertainment business are observed. The book also charts the concessions (artistic, professional and personal) that are often made by such artists in an attempt to achieve success and the consequent legal problems that may arise from their working relationships. Embracing historical materials and current legal practices, Contract and Control in the Entertainment Industry will be of interest to academics and students in the fields of law, sociology and cultural studies. It will also appeal to anyone who is interested in seeing how many areas of the entertainment industry have placed very restrictive contractual controls on the raw materials of the industry - the creative artists.

Once Luxembourg was a two-bob country known only for its radio station. And the fact it once let in nine goals against England, Now a judge in the European Court in Luxembourg endangers our national game with his ruling that the transfer system is against European law.

This euro madness will drive smaller clubs out of business or force them to merge. It will make football a paradise for players and agents - and hell for the fans.

Who gave Europe the right to take football away from us?

(The Sun, September 21, 1995).

What is more reasonable than our plea that a footballer with his uncertain career should have the best money he can earn? If I can earn £7 a week, why should I be debarred from receiving it? I have devoted my life to football and I have become a better player than most because I have denied myself much that men prize. A man who takes the care of himself that I have ever done and who fights the temptations of all that can injure the system surely deserves some recognition and reward! (Billy Meredith, quoted in Harding, 1991, p. 42).

Players know that first and last they are the directors' chattels (dictionary definition of which is 'a moveable article of property'). We are all their stocks and shares, their commodities. Perhaps worst of all, we are their playthings - their Lego blocks. When it suits them, they buy. When your job has been done or you don't perform to expectation or they just get bored with you, they divest. Nothing personal, you understand, business is business. What does it matter whether you're one hell of a nice guy, a complete arsehole or someways in between? You're their puppet and their attitude is that they have paid for the right to pull the strings (Nelson, 1995, p.237).

2 Selling Soles

Contract and control in football

With the World Cup being held in the United States in 1994, the last bastion of football impenetrability was breached. For the first time, the foremost international football championship was held in a country with no sustained football culture a requirement that up to that point had been considered crucial to attract the tournament. The importance of staging the competition in the United States cannot be overestimated. Earning the apocalyptic description of 'the last World Cup' (Redhead, 1994), it was certainly the first such occasion that attempted to harness the vast commercial market that had, until this time, been rather sketchily exploited.¹ Amazingly, given the spat that surrounded the English and West German bids to stage the World Cup 2006 (neither of whom has staged the tournament since 1966 and 1974 respectively) FIFA have intimated that the World Cup is likely to return to the United States in the relatively near future. Such is the sway of commerce in football today.

In England both the external and internal construction of professional football has been the subject of enormous change over a relatively short period. This transformation has affected how the game is played, viewed, organised and financed; in short, little is left untouched aside from the basic laws of the game. However, these too have also been subject to some tinkering, avowedly to improve the spectacle of the game although, perhaps fortunately, some of the more radical ideas such as widening the goals to increase the number of scoring possibilities have not yet been adopted.² Moreover, the leading players are able to command incredibly high financial rewards, partly as a result of the legal intervention by Jean-Marc Bosman which is discussed in detail later, which would have been unthinkable during the era of the maximum wage.

As part of the financial explosion, clubs are increasingly altering their corporate status from private to public in order to raise funds and this trend seems likely to continue. The commercialisation of football has taken a number of forms, perhaps the most cynical of which is the marketing of products as diverse as branded whisky, chocolate and soft drinks in addition to the more football related kits and videos.³

It remains to be seen whether this commercial development of parts of the game will be maintained given the 'boom and bust' cycle that has littered its past. Consider the following quote from Pawson (1974, pp.180-1):

Bournemouth's special aim is to be the first League club to run professionally a sports complex based on the football ground. Already their rebuilding programme is advanced and their eager young staff plan to make the stadium an entertainment centre open throughout the week. But everything will hinge on the football success and on overcoming the initial frustrations of promotion missed by a point and transfer payments far exceeding transfer returns despite the £200,000 received for Ted MacDougall. Bournemouth could not aim so high without the backing of a wealthy chairman. It is the same at Brighton and Hove Albion.

A quarter of a century, later such optimism seems wildly unfounded. Brighton and Hove Albion languished for most of the 1996/7 season at the bottom of the English Third Division, only narrowly escaping relegation and with the prospect of no permanent ground in the future, whilst Bournemouth Athletic moved at one stage into the hands of the official receivers. With all the glamour, excitement and, most of all, money that now appears to surround the game at the highest level it is easy to forget that, during the 1980s, professional football was facing a crisis that seemed to threaten its very survival. The 1980s were truly football's 'decadus horibilus'.⁴ Whilst Britain languished in the worst recession since the 1930s, football began to feel the effects of the economic and social climate as its own infrastructure began, quite literally, to crumble. Many clubs had decaying grounds left under-maintained and undeveloped for years, the spectre of football hooliganism, squabbles over TV rights and dwindling attendances - all were crucial and depressing issues for football in the 1980s although even these were put into the shade by the tragic events at Bradford, Heysel and Hillsborough.

The Hillsborough Report (Taylor, 1990), the inquiry into the deaths of 95 Liverpool fans at an FA Cup semi final in April 1989, was the culmination of both football's worst decade and the last in a series of reports and inquiries that had examined a number of issues affecting football. Only four years earlier, Mr Justice Popplewell (Popplewell, 1985 & 1986) had been appointed to undertake an inquiry into events at the grounds of Bradford City and Birmingham City on 11 May 1985.⁵ After Popplewell had begun his work, football was further shocked by the tragedy during the 1985 European Cup Final between Liverpool and Juventus at the Heysel stadium where thirty nine people died and many more were injured. Although 'Heysel' was not part of Popplewell's original remit, it was decided that he should take account of the events and any lessons that could be learned from that tragedy. Notwithstanding these official reports, Lord Justice Taylor expressed concern that his was the ninth official report covering crowd and ground safety and many of these had contained recommendations not acted upon. Certainly Hillsborough provided football with one last chance to put its house in order - a chance that in the 1990s appears to have been largely grasped. One of the major problems faced by the football authorities was its somewhat strained relationship with the government of the day. On 13 March 1985 there was widespread crowd disorder at a sixth round FA Cup tie between Luton Town and Millwall played at Luton's Kenilworth Road ground:

At the end of it, 47 people, including 33 police officers had been injured; 700 seats were ripped out of the Bobbers 'Family' stand by intruding Millwall fans, and damage inside the ground was estimated at £15,000. An estimated £10,000 worth of damage was also caused outside the ground where local residents - many of them of Asian origin - were attacked and their cars, homes and shops bricked. British Rail estimated the cost of damage to trains taking Millwall fans back to London at £45,000 (Williams et al. 1989, p. 10).

The televised pictures of both this disturbance and of the hooliganism at the Chelsea versus Sunderland match at Stamford Bridge led to the direct intervention by the then Prime Minister, Mrs Thatcher. The Minister responsible, Neil Macfarlane, reported to the Commons on the day after the riot at Luton that Mrs Thatcher had personally requested that he obtain a report from the Football Association, within a week, detailing what action it intended to take against those clubs who had a history of crowd violence. Following this the Prime Minister and other senior Ministers met with representatives of the Football Association and the Football League on 1 April 1985 to discuss steps to counter hooliganism. Neil Macfarlane outlined to the House of Commons those steps that the football authorities would take including: examining the responsibilities of clubs, accelerating the introduction of CCTV, ensuring that perimeter fencing was in place at grounds where 'problem matches' might be played, the possibility of membership cards for certain matches, player behaviour, alcohol consumption at matches and encouraging family enclosures (Hansard (HC), 4 April 1985, Col. 752).

These measures reflected the government view that hooliganism was a problem for football rather than society generally, hence the use of CCTV, fencing and a ticketing policy. The emphasis was firmly on the authorities, the clubs and indeed the players to adapt their behaviour. Following the Heysel stadium disaster the Prime Minister had responded to Neil Kinnock's request for an investigation into 'the breakdown of behaviour in society' with a fierce rebuttal:

The right Hon. Gentleman suggested that there should be an inquiry into crime and hooliganism. That could go on for years and find as many answers as there are people on such an enquiry. There is violence in human nature. There are only three ways of trying to deal with it - persuasion, prevention or punishment. We shall try to operate all three (Hansard (HC), 3 June 1985, Col. 25).

Although primarily considered a problem for football, the Government had indicated that it would be prepared to legislate even without the support of the governing bodies. This is clearly demonstrated over the vexed issue of membership card schemes, investigation of which was in the 'shopping basket' of measures extracted from the authorities at the 1 April meeting. Following Popplewell (1986) the Government introduced the Football Spectators Bill which contained in Part I, Government proposals for a National Membership Scheme to be operated by the 'Football Membership Authority'. This scheme (although still within the Football Spectators Act 1989) has never been implemented following the conclusions of Taylor (1990).

Football's rehabilitation was certainly galvanised through the responses to the Hillsborough disaster although some positive steps had already been taken in terms of the creation of fan groups, such as the Football Supporters' Association, and the growth of the fanzine movement (Haynes, 1996). This transformation saw itself translated into new stadiums and a post 'Italia 90' respectability exemplified by Nick Hornby's Fever Pitch (1992):

One of the by-products of Fever Pitch was the rehabilitation of football as a respectable pastime. At the time of its publication, a series of developments had already brought about fundamental changes in the football industry - most notably the Hillsborough disaster, but also the fanzine movement, supporters' associations, academic bodies like the Sir Norman Chester Football Research Centre, as well as an increase in public interest stimulated by England's performance in Italia 90. Fever Pitch seemed to crystallise this change of atmosphere, and provide a bridge into the game for a new middle-class audience (Barrett, 1997, p.88).

In tandem with these changes came the most far reaching organisational change the formation, amongst much angst and debate, of the FA Premier League and the television and merchandising deals that ensued. With the greater financial clout that football now had, the players at the higher echelons of the game began to attract salaries and bonuses that would have been beyond the wildest dreams of players plying their trade even ten years before, let alone at the inception of the professional game, when terms and conditions were poor.⁶ Contemporaneously, player contracts have become virtually unenforceable by clubs, with discontented players able to move almost at will irrespective of the remaining term.⁷

This chapter is essentially concerned with this development, of how players have come to enjoy this revolutionary change in terms and conditions, from limitations on wages and the historical restriction on changing clubs even at the end of their contractual period, to the current position. The context for the change in the players' bargaining position is the changing nature of the game itself in terms of organisation, commercialisation and administration.

The administrative structure of the game

Football has always been characterised by a fascinating set of dynamics: North versus South; working class versus middle class and middle class versus upper class; new money versus old status. Professional players in the hundred years of the League's history have been predominantly working-class; administrators of the League have been predominantly first-generation middle-class; administrators on the level of the Football Association have been more upper-middle and middle-class. This has led to many clashes of values, of a classically patrician-plebian kind, in which the old amateur/professional tensions have been relived (Tomlinson, 1991, p.26).

A brief analysis of the changing nature of football's organisation is important in order to understand some of the contemporary trends within the game and particularly the increasing commercial opportunities for clubs and players. We are acutely aware that when discussing the financial explosion within football there is a tendency to generalise and, it ought to be recalled that, there are large areas of the professional game, which still retain more traditional characteristics.⁸ Not all players and grounds have benefited from the increased income as fundamentally as those belonging to the leading clubs. A major historical division has revolved around the relationship between the Football Association and the Football League,⁹ whilst at the beginning of the 1990s there were moves to amalgamate the two, the objects of the two bodies are markedly different. The Football Association is the governing body of the entire game, the guardian of the laws and responsible for football at all levels. It sanctions the creation of Leagues, the most important of which, historically, were the four divisions of the Football League which was subject to an annual contractual renewal. The object of the Football League was to run the League Championship, the League Cup¹⁰ and other cup competitions for clubs within its jurisdiction. There is a great contrast between the League Cup, run by the League and confined to League clubs and the Football Association Challenge Cup (the FA Cup) which is open to all affiliated clubs. The latter tournament attracts great prestige partly because there is the opportunity for non league clubs to perform 'giant killing' exploits. In recent years the League Cup has been seen by some of the leading Premier clubs, generally those also engaged in European matches, as an unnecessary additional competition although up until the 1996/7 season it still carried an automatic place in the UEFA Cup for the winners.

The longstanding power struggle between the two bodies reappeared as the game attempted to restore its fortunes, after the disastrous 1980s. There had for some time been discontent inside the Football League itself, as the larger clubs of the first division sought to improve their financial position, even if this was at the expense of the smaller clubs. As Fynn and Guest (1994, p.22) neatly put it, Irving Scholar the Tottenham Hotspur Chairman thought his club had; 'more in common with Milan than Coventry City'. Of the two, the Football League was first out of the blocks with its proposals, launching 'One Game, One Team, One Voice' in October 1990. The essence of the plan was power sharing, a new joint body to run the English game. The Football Association sought to respond with its own vision and during a meeting in January 1991 at the Football Association Fynn (who was present as a consultant) describes what he terms the 'bombshell' dropped by Charles Hughes (Director of Coaching and Education). This bombshell was that the FA were ready to countenance a new Premier League comprising eighteen clubs; a move that would see the FA overseeing the new League and the 'trouble making' Football League marginalised forever (Fynn & Guest, 1994).

In June 1991 the proposals of the Football Association, 'The Blueprint for Football', were published; the Football League document having been rejected by the FA Council in April. At the heart of the proposals was a new structure at the top of the game. The Association strongly argued for a pre-eminent position for the national side at the 'apex of the pyramid of excellence'. It was submitted that the support for the national...