How players started to take power away from the clubs, and keep it for themselves.

By Tony Attwood

Football’s club owners don’t do crises very well.  And football journalists don’t do the reporting of crises very well either.

The history of crises in football is by and large a history of club owners digging their heels in and saying any change will result in the end of football as we know it.   And then giving way at the last moment.

So I thought it might be interesting at this time of no football and what could be the biggest football crisis of them all (if as I suspect, a lot of clubs are going to run out of money in the coming weeks and months of no football)  to look at past crises and see what happened.  I’ll try and do this over a few articles in the coming weeks, in the hope that it might be of interest to you, or at least occupy you if there’s nothing on TV.

My first thought in this regard is the fact footballers have huge salaries and a lot of power in terms of their contracts.  How did we get to the position of such overwhelming workers power in an industry run by billionaires?

If you know anything about players’ rights and how these have changed across the years you’ll maybe think about George Eastham and how in 1963 he brought about the end of the long-running “retain and transfer” system through going on strike until he pushed through a move to Arsenal, with the courts ruling that the traditional system of transfers was fundamentally illegal.

And you’ll also probably recall the Bosman ruling in the European Court of Justice in 1995 which gave the same freedom of movement to footballers as everyone else within the EU.  An automatic freedom of movement between the UK and Europe, which of course British players will lose at the end of this year (unless the powers that be on both sides of the channel, sort out a new agreement).

Indeed you might even recall the Court for Arbitration in Sport ruling in January 2008 which restricted the enforceability of footballers’ contracts to three years.  Four year contracts are still the norm, of course, but in legal terms, the final year can’t be enforced.  What makes players abide by them is that the contract guarantees their salary for the final year, which is handy if they are injured, lose form, or indeed if there is a viral outbreak as we have now.

But if you ask a journalist, ‘how did the original “retain and transfer” come into being in the first place?’ then by and large the answer is likely to be vague. Indeed if we ask ‘what did Arsenal have to do with it?’ the answer will be vaguer still.  Football journalists in the UK are not very good either on history or cause and effect.

However what you should know is that it was Arsenal that was instrumental in laying the ground work to legalise the “retain and transfer” system which bound players to clubs, in 1893. It was not their finest hour!

But curiously they were also at the centre of undoing that mediaeval system.  The old approach lasted until 1960, when Arsenal wanted to buy George Eastham.  With Arsenal’s support Eastham went to court to get out of his existing contract, and in winning the case proved that “Retain and Transfer” was illegal.

So yes, being involved in the creation of “Retain and Transfer” was hardly Arsenal’s greatest moment – although to be fair there is no indication that the club had any idea that its court case with George Davie would have such long term implications. Indeed we must remember that in the case that is described below, Arsenal were the defendants.  It just happens that they won, and established a precedent.

Which quite possibly embarrassed Royal Arsenal, because Royal Arsenal was the workers club, run by a committee made up primarily of men who worked in everyday jobs as employees of Royal Arsenal.

So here’s the story.

Royal Arsenal started the matter by refusing to pay the salary of George Davie, their player, when he was injured.  This was common practice in the 19th century, but it was Davie’s decision to object which changed the football world.

Starting in 1885 players had to register at the beginning of each season with one club. The player could then change clubs only if his existing club agreed, although players could change clubs at the end of the season simply by walking away.

As a result, successful players demanded pay rises each September when the clubs asked them to re-sign.

Now it has been assumed that the League moved away from this system (as Wiki expressed it), “to sustain the interest of spectators in the competition,” and to stop the richest clubs from dominating football, although neither Wiki nor any other site or book which has copied this view gives evidence to support this belief.

However research by the Arsenal History Society revealed that a major factor in this change was the 1893 Davie v Royal Arsenal Committee court case, a case which Arsenal won, and which subsequently allowed them, and all other clubs, to change the contractual relationship between club and player – which is what happened in the summer of 1893.

Davie was born in Cardross on the north side of the Firth of Clyde on 19 April 1864 and joined Arsenal from Renton in October 1891 having previously played two games for Everton in the 1888/9 season. (He may well have played for other clubs, but the records are not complete).

Renton we should note was a particularly significant club at the time having three years earlier proclaimed themselves Champions of the World when as winners of the Scottish Cup they had beaten FA Cup holders West Bromwich Albion in a playoff. So it is clear that by this stage of his career, Davie was already seen as a player of some ability.

For Arsenal, Davie made his cup debut in the FA Cup tie against Small Heath on 16 January 1892. It was not an auspicious start, the result being Small Heath 5 Royal Arsenal 1. But Davie scored Arsenal’s only goal of that game and played well enough to be selected in each of three more FA Cup qualifiers the following season, scoring twice more.

In total, between January and November 1892 he made 58 senior appearances for Royal Arsenal and scored 39 goals – an astonishing return for a man playing on the wing under the original offside rule which required three defenders to be behind the ball when it was passed within the opposition’s half.

His final game was 19 November 1892 in the FA Cup 3rd qualifying round against Millwall Athletic. At that point Davie was injured and a dispute between himself and the club over salaries escalated very quickly. In essence, it appears that Arsenal said that Davie, although injured, could still be engaged in what today we might call “light training” while the injury healed. Or perhaps they even thought Davie was faking his injury (and to be fair, who wouldn’t after that level of football).

So great was the dispute that within two months of Davie’s last game the case of Davie vs The Committee of Royal Arsenal FC was in the County Court. The matter by this stage, however, was not so much if Arsenal should continue to pay Davie’s salary, even though he was not playing, but rather if Arsenal had the right to dismiss Davie over the issue of his refusal to engage in the club’s designated training regime, given that Davie had a contract until the end of the season.

That was in fact what the court stated was the case – the contract was not valid now the player could not do his job, and the club could dismiss a player even though he had a year-long contract. This meant the clubs were free to invent a completely new form of relationship between themselves and their players – and this they proceeded to do with a vengeance.

To emphasise the point, what particularly made the contract unenforceable in the eyes of the judge seemed to be the fact that the contract allowed the player to be paid whether he worked or not. Thus if not selected for the team through poor form, injury, or a breakdown in the employer-employee relationship he would, under the standard one-year contract still be paid. But by extension, this would imply that the club had to pay the player no matter what, and that, the judgement suggests could not be valid, since such an arrangement could mean that the player could declare he was not fit to play, and yet would still have to be paid, which was unreasonable (he said). There had to be some checks and balances – so even though it was Arsenal who had created the contract, the contract was deemed unenforceable.

The fact that this arrangement of payment when not working didn’t happen in any other area of employment (there being no statutory sick pay or any other such rights at this time), added to the judge’s feeling that this was not a valid contract of employment. Employee rights were not the order of the day in 1883.

The irony was that the club that Davie took to court was Royal Arsenal, the club set up to be run by the workers for the workers – a club who would later the same year be involved in a fundamental dispute with the “gentlemen” of the club who were in the process of calling the Committee a bunch of “nobodies” who were not fit to run the club.

As a result of the Arsenal Committee’s victory in the Davie case, all the League clubs devised a new contract for the 1893-94 season onwards, a contract that very much put the players in their place at the bottom of the heap, and which lasted until the challenge of George Eastham in 1960.

Under the new approach known as “retain and transfer”, once a player was registered with a Football League club, he could not be registered with any other club, even in subsequent seasons, without the permission of the club with whom he was registered. This regulation applied even if the player’s annual contract with the club holding his registration was not renewed after it expired.

But the club was not obliged to play the player.  Worse, if the club refused to release his registration, the player could not play for any other Football League club.   Davie not only lost his own case, he lost virtually every right that the players had previously enjoyed.

However although power moved dramatically from the players to the clubs, the players did still have some control left.   For a start they could simply walk away from the club and either play abroad (which a surprising number did), or indeed play in the Scottish League or Southern League (neither of which recognised “retain and transfer” and insisted on more harmonious forms of contract).  There was nothing the League club could do to stop this.

Additionally, the players could use the power of publicity to blacken the name of the club that would not let them go. For if a club did exert the full force of retain and transfer and refuse to allow the player to move while not paying him, that would mean very few new players would ever want to move to that club. The risk of playing for a club that would even contemplate taking advantage of this clause in the new contract was so great that players started to be cautious as to who they signed for.  As a result the clubs needed to keep their name clean and the clause was rarely used.

All this would be enough to make the George Davie vs Royal Arsenal case of supreme interest in the history of football. But there was a second issue that made the case singularly famous, and that was an interview that Davie gave upon the conclusion of the case to the St James Gazette – an interview which became a national phenomenon, with the interview being reprinted in newspapers across the country, and indeed turning up even in the press in Australia some six weeks later.

It was in fact that article which revealed the financial workings of football to the general public for the first time, and the public were suitably outraged and shocked at the vast amount of money that was being spent on players and generated by football as a whole.

I’ll continue with this in a further article, tomorrow.