Can pre-contracts in football be enforced?

It is common practice for clubs to ask players to enter into pre-contract agreements, often young players who are prevented from entering into a contract, normally the scholarship agreement, due to their age and the applicable football regulations. However, are such agreements enforceable?

We have seen many examples of these agreements – be it by way of a letter for players to sign or undated contracts or clubs producing a Deed of Undertaking – however they all have the same goal; to tie the player into a scholarship and/or premier league contract before they are able to actually sign a contract.

They may contain:

• The basic terms of the student arrangement, scholarship contract and/or premier league contract 
• Provide that the premier league contract is conditional upon a club trigger (for example serving notice on the player) 
• Remuneration details for entering into the contract/deed 
• Representations and warranties by the player (and often parents or the agent too)

Such representations and warranties include the acceptance of the scholarship agreement, when called upon, entering into the scholarship agreement and contract and the parent and/or agent procuring the player signing the same, the obligation to do such other acts or things as to ensure the registration of the contracts and possibly an obligation not to solicit or accept other offers of employment.

The key question is whether there is a legally binding contract. Sometimes the player may want to enforce it (if they have lost form or have become injured and the club won’t offer the actual contract) and sometimes the player wants away (usually when they’ve received a better offer elsewhere!)

This depends on the basic principles of contract law – is there an offer, acceptance, consideration, intention to create legal relations and certainty of terms? Clearly the aim of such documents are simply to circumvent the legal issues, and the applicable regulations, by getting the player to enter into the deed/letter that attempts to satisfy the five basic elements for a contract.

Even if the agreement contains the five basic elements then it may still be open to challenge as the player will often be a minor.

If it is held that the agreement is purely for the protection of the club and not for the player’s benefit then it may be void. In the Aylesbury case the Court found that the contract was not for the minor’s benefit. It was held that the player did not need to enter into a contract with Aylsebury to receive training and experience. Further, (i) since the FA prohibited such arrangements, the minor’s contract could not be registered, (ii) for an initial period, at least, his wages were to depend upon the will of his employer, and (iii) there were restrictive covenants in the agreement to prevent him playing for another club, or indeed any sport. It was concluded that the contract was not to benefit him at all, but to ensure Aylesbury could negotiate appropriate compensation.