So by now you’ve probably seen that Chelsea have been issues a transfer embargo for the next two transfer windows and have landed themselves a fine for the 2007 signing of hot prospect Gael Kakuta, who has been banned for four months himself. There’s clearly a lot going on behind the scenes with regards to this deal, so let’s try to delve in.

I’m not a lawyer. I’m not involved in this story at all, and have no first-hand knowledge of the ins and outs of this situation. I am however interested, and there’s lots of interesting parts of this to look at. It all starts and finishes with Kakuta’s status in April of 2007, when he signed for the club. At this time, he was only 15 years old, and was therefore too young to be signed to a professional deal in France. As has become the trend in the upper echelons of UK football, this was exploited and he made the switch to England, with Lens powerless to stop what was potentially their best ever product departing. Or so everyone thought.

The crux of this case lies in quite how Kakuta was attached to Lens. It’s definite that he wasn’t a professional. However, if he is therefore defined as an amateur, things start to look weird. Frans de Weger in The Jurisprudence of the DRC elaborates:

“According to (Article 2 Paragraph 2 of the RSTP, Edition 2005), a professional is a player who has a written contract with his club and is paid more than the expenses he incurs in return for his footballing activity. All other players can therefore be considered as amateurs.”

He continues:

“The difference between an amateur and a professional is also relevant in relation to his transfer status. As we have seen before, if the player is considered to be an amateur, no compensation needs to be paid to his former club.”

Seems quite clear then, at least on the surface. If Gael had no professional contract with Lens, he can’t have been considered a professional, and therefore Lens were unable to claim a fee for him. Right? Apparently not. It seems likely that the club had what has been referred to as a ‘non-solicitation’ agreement with Kakuta, something which has recently come to light in a situation quite similar to this one, but involving Manchester United.

Le Havre reacted on Friday with a long and virulent official statement against Manchester United regarding the recruitment of Paul Pogba, the captain of their under 16’s. The Normandy club, relegated to Ligue 2, ensures that a non-solicitation agreement was signed in Autumn 2006 between the player and his parents, which would enable Pogba to sign a professional contract, “once the player had become of age and completed the educational criteria required by law.” The professional contract was to begin in the 2009-2010 season.

It sort of rests on this principle – if Gael had agreed a deal of this form, then he has indeed broken a contract. What is currently interesting/annoying Chelsea fans is that some two and a half years after the deal was completed, this is the first anyone has heard of it. Whilst Lens were vehement in their denials of any potential transfer, they were saying no more than most overseas clubs do when put in this situation, and no more was heard of it. There were even reports that they were duly compensated with £200,000, although those were never confirmed and likely never close to what Lens wanted.

It is the timing, and indeed the quiet last two years, which raise further questions. In their own guidelines and regulations, the DRC indicate a given timeframe for hearings:

“As a rule, the single judge and the DRC judge shall adjudicate within 30 days of receipt of a valid request and the Players’ Status Committee or the Dispute Resolution Chamber shall adjudicate within 60 days.”

With that in mind, it seems Lens have waited two years before making their move, giving them ample time to see whether their claim would be worth pursuing, presumably with greater remuneration in mind. Had they done so instantly, they would have had more credit to their actions, but would also have had a more unpredictable future for a player who has since shown glimpses of top class ability. Chairman Gervais Martel has proclaimed justice today, but in 2008 made this comment:

“The first issue is to be able to retain our best players. Last season we lost two promising youngsters (Kakuta and Adel Taarabt) because we could not compete financially with English clubs.”

But without any claim of taking the action General Manager Francis Collado threatened in March of 2007, before Kakuta moved. Action which has indeed happened today. Why has it taken so long? Why no issue over Taarabt? If Chelsea are found to be in breach of contract and encouraged Gael to renege on something he had already signed, then so be it, the club should be punished. But there are questions to be answered on the part of the DRC and on the part of Lens, and those will surely shape the appeals process.

Chelsea have stated their intentions to appeal as strongly as they can, feeling that the punishment is quite arbitrary and without full justification. The appeal will be heard by the Court of Arbitration for Sport, who have recently been on Chelsea’s side in the Adrian Mutu saga, although that will have absolutely no bearing on this case. Similar events in recent history will have, most notably that of Philippe Mexes. Whilst still under contract at Auxerre, the French defender signed a deal with Roma, and was duly fined €8m and banned for six weeks. Roma received a one transfer window ban.

Most recently, FC Sion have been handed the same punishment as Chelsea, for their signing of Egyptian goalkeeper Essam El Hadary. Having appealed to the CAS, the sporting sanctions placed upon them and the player were lifted, and they await their appeal hearing. The process has so far taken five months without being resolved, and two months since the appeal was placed. Looking over recent CAS judgments on DRC rulings (involving Tomas Mica and Moustapha Bayall Sall for interested readers), the fine should be reduced greatly, whilst Kakuta’s four month ban should stand. Sanctions on Chelsea’s transfer activity should at least be reduced to the same as Roma’s, but perhaps reduced totally, with nothing for Saint-Etienne for their part in the Bayall Sall deal.

Looking in from the outside in these sort of cases is frustrating. It’s clearly quite a big deal, and with a whole lot of information we don’t get to see. Therefore we can only speculate, which is the intention of this piece. I’m sure many of the questions raised here will also be raised by Chelsea, even if it is at the very least in awaiting FIFA’s full reasoning. The club clearly expects to have the majority of the punishment overturned, and given the questionable evidence, it has a degree of hope in that outcome. For FIFA, if they’ve chosen to punish one club, they’ve set themselves a precedent they must maintain for the sake of their credibility, in much the same way as UEFA have made a rod for their backs regarding Eduardo. The sternest short-term test for this will be Le Havre’s pressure for sanctions on Man Utd over the signing of Pogba. If the decision isn’t consistent, you can bet Chelsea will let them hear about it.

Oh, and just to address the other issue here – Chelsea won’t fall apart if they can’t sign anyone for eighteen months. The worst case scenarios all result in teams capable of challenging for major honours. You’re kidding yourself if you think otherwise. Besides, if an injury crisis strikes during the African Nations, Kakuta should be available to play himself anyway…

(Picture supplied by Dan Davies)

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