Neymar, Barcelona and Article 17: The Spanish giants' audacious plan to get the Brazilian back
With additional reporting by Eduardo Fernandez-Abascal
Andy Webster, who won 28 caps for Scotland, retired from football in 2017, but he could provide the key to Neymar's possible return to Barcelona, assuming the indefinite delay of football caused by COVID-19 doesn't linger too long and affect club's finances too harshly. Webster famously walked out of his contract with Heart of Midlothian in 2006 to join Wigan Athletic, then of the English Premier League. He still had one year to run on a four-year deal when he invoked article 17 of FIFA's transfer regulations in order to get his move.
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Article 17 was drawn up in 2001 when the European Commission threatened to outlaw the transfer system within the European Union because it undermined players' freedom of movement compared to other workers. It states that players can leave their contracts "without just cause" once the three-year protection period ends.
The consequences of that are far from clear, but sources have explained to ESPN that Barca will look to the Webster transfer as a precedent this summer when, for the second year running, they try to bring Neymar back to Camp Nou after he completes the third year of his Paris Saint-Germain deal. A source at the club tells ESPN that Neymar, 28, is still "an incredible footballer and the natural heir to Lionel Messi," adding that Barca "will do everything possible to bring him back."
Few clubs have tried this method due to the often unspoken agreements between teams not to manipulate the system. But snatching him from PSG via article 17 would represent one of the most incredible transfers in football history, not least for the way it should shatter these "gentlemen's rules" that have seen this method go unused for over a decade. In terms of ambition, it would rank on par with Neymar's €222 million move to Paris in 2017, Luis Figo's switch from Barca to Real Madrid in 2000 and Madrid's signing of Alfredo Di Stefano under Barca's noses in the 1950s.
Messi has hinted several times that he wants Neymar back at the club, while defender Gerard Pique even revealed the players were willing to adjust their wages last summer if it helped the club -- who had already committed to big-money deals for Antoine Griezmann and Frenkie de Jong -- to structure a deal for the Brazilian, who scored 105 goals in 186 games in four years with Barca.
President Josep Maria Bartomeu, whose tenure at Camp Nou runs until 2021, also wants to make a big crowd-pleasing signing before he steps to the side. The club's priority is to negotiate with PSG first, in a bid to bring the superstar back, but if the French side refuses to discuss a transfer, Barcelona will consider using this highly contentious mechanism to land their man.
How article 17 works
Webster's move to Wigan ended up in the Court of Arbitration for Sport (CAS) -- the international quasi-judicial body established to settle disputes related to sport through arbitration -- but the story didn't end well for Hearts. CAS ruled that the player and/or Wigan would have to pay a fixed sum of £150,000, which represented the final year of his salary at Tynecastle Park. It was a huge blow for the Scottish club, as FIFA had previously ruled they should be paid £625,000 for the 25-year-old defender.
At the time, the Webster case was reported as a landmark ruling in the sport. It was compared to the Bosman ruling, which states players can move for free when their contracts expire, and is the work of Jean-Marc Bosman's challenge to the system in 1995. As a consequence, Webster's transfer was dubbed the Webster ruling, and sources have told ESPN that Neymar, his lawyers, Barcelona and their lawyers are pursuing a similar pathway.
ESPN has learned that Bartomeu has placed his confidence in a Belgian lawyer, Wouter Lambrecht, to look into all possible outcomes. Lambrecht has worked for the club since 2017 and specialises in matters relating to FIFA, UEFA and the European Club Association (ECA) -- he has previously worked for two of those organisations, FIFA and the ECA. (Lambrecht was unavailable for comment for this article.)
A legal source with expertise on the situation has told ESPN that the first step is for Neymar, upon the completion of the third year of his terms, to "break his contract with PSG." It's at that point when FIFA's protected period ends and he would have to inform PSG of his intentions within 15 days of the club's final competitive game of the campaign. (The ongoing suspension of play across Europe would also complicate which game is considered their final competitive fixture of 2019-20.)
If Neymar does that, Barca and PSG would then have to sit down at the table with the aim of reaching an agreement. That was not possible last summer when the two sides last tried to do business. Barca came up with all sorts of formulas: a loan with an obligatory option to buy for a figure approaching €200m at a later date, cash plus player deals and even plans focused around paying the transfer fee in installments. Nothing satisfied PSG's demands.
If the two clubs cannot reach a deal here, FIFA would try and resolve the case as they did with Webster. If either of the clubs disagreed with the ruling, they would then reserve the right to appeal to CAS.
The reality is that in trying a measure this extreme to get Neymar back to Camp Nou, Barca would be taking a step into the unknown. The Webster ruling has not become football's new Bosman rule; rather, cases have been sporadic in court, with no new examples for more than a decade. The 2008 case involving attacking midfielder Matuzalem, which followed Webster's transfer, provides an example of the risks Barcelona and Lambrecht would be taking on.
A cautionary tale for Barca
Matuzalem, a former Brazil U20 international, sought the same outcome as Webster when trying to force a move from Shakhtar Donetsk to Real Zaragoza in 2008. The Ukrainian side had signed him from Brescia for €8m in 2004. Three years later, he unilaterally terminated his contract and signed for Zaragoza. FIFA ordered the Spanish club to pay €6.8m, but CAS later ruled the fee should be almost double (€11.9m). Among other things, they also considered how much it would cost to replace him with a player of a similar quality.
When neither Matuzalem nor Zaragoza could pay the compensation ordered by CAS, FIFA imposed sanctions (reaffirmed by CAS) including indefinitely banning Matuzalem from all football-related activities. This decision was later annulled by the Swiss Federal Tribunal, which is the only court where CAS rulings can be challenged (and only on a very limited number of grounds).
"It's difficult for clubs, players and agents to pre-prepare a case and know a player is going to be worth X or Y," sports lawyer Juan de Dios Crespo told ESPN. "There is no fixed criteria. That's what FIFA wants. [That way] they can avoid a situation where a player or an agent can end a contract knowing how much they will have to pay to move elsewhere."
Dios Crespo has represented players and clubs in past cases involving article 17. He was Webster's lawyer, obtaining a favourable outcome for the player and Wigan, but then worked for Shakhtar in the Matuzalem case. He also represented Morgan De Sanctis when the goalkeeper invoked article 17 to leave Udinese for Sevilla in 2007. CAS eventually awarded Udinese €2.2m when the Italian side had claimed €4m.
When the Webster ruling was made, FIFA said they were "dismayed" by the CAS' decision. Then-FIFA president Sepp Blatter said it was "very damaging for football and a pyrrhic victory for those players and their agents, who toy with the idea of rescinding contracts before they have been fulfilled." Yet Tony Higgins, a member of the European players' union FIFPro, took a different view. He said there was "now a degree of certainty about what the value in question will be." That has not proved to be true. Asked by ESPN if they would support Neymar if he decided to invoke article 17 to push through a move to Barca this summer, FIFPro failed to respond.
A source with knowledge of Barca's plans involving Neymar pointed out that there are so few precedents and none involving players of Neymar's stature, which is why this case is so complicated. A number of factors could be considered, including outstanding wages and how much it would cost to replace the player, but the reality is that every case is judged on its individual merits.
All in all, the plan is far from clean-cut for Barca. If they were to sign Neymar and then refuse (or not be able) to stump up the figure fixed by FIFA and/or CAS, they would risk severe punishment. A source explains they would be looking at a two-window transfer ban, similar to the one they served for the signing of minors five years ago, and a massive fine.
"I don't think clubs will dare to use it [again]," Dios Crespo says. "Many clubs continue to call me for advice [about article 17] but there have been no cases for years."
A long shot
The risk outlined above is not one Barca should take lightly as the consequences of not being able to afford to pay whatever FIFA or CAS decide are severe. The Spanish champions had to take out a loan to sign Antoine Griezmann last summer and sources have told ESPN that the club would need to raise €60m in sales before the end of June to balance the books.
It's hoped the sale of Philippe Coutinho, currently on loan at Bayern Munich (who have an option to buy), will bring in some cash, but shifting the former Liverpool man is proving harder than expected. Sources have also told ESPN that the club expect to see their transfer plans affected by the financial implications of football's coronavirus-imposed shutdown: Barca is also reportedly meeting this week to discuss a temporary reduction in player salaries given the ongoing crisis.
Money is not the only consideration, either. Injuries have hampered Neymar at PSG, and there are questions about his fitness as he nears 30. So while Barca may see Neymar as Messi's heir apparent, the risk of signing him by invoking the Webster ruling, as "Ocean's 11" as the heist may be, would be a high-stakes gamble, the likes of which has never been seen before in football. It could entail months of courtroom fighting and huge sums of money.
Is it worth it?