Phillipe Coutinho, Virgil Van Dyke and the Contractor’s Crystal Ball

When the transfer window slammed shut last week, Phillipe Coutinho was said to be ‘very sad’ at his fate. Forced, against his will, to continue kicking a ball for Liverpool. There was a similar tale on the South Coast where Virgil Van Dyke was left marooned by failed (or non-existent) negotiations between Liverpool and Southampton.

Most people struggle to empathise with the sadness of being paid ￡150,000 week to play a game that you love, although some did point out that both Liverpool and their fans should accept Coutinho’s destiny was to play for the (ailing) super power Barcelona.

Football is a fickle game and it’s ironic that the very thing making Coutinho and Van Dyke so sad is the thing that made them so happy less than a year ago; both signed bumper new contracts with their current clubs.

Coutinho signed a 5-year contract that came in to play on 1st July this year whilst Van Dyke was so happy at Southampton he signed a 6 year deal last year, however, neither contained ‘release clauses’ in the event of an offer from another club.

The lack of such release clauses meant that prospective buyers could offer any sum of money they wanted for the player but the selling clubs were under no obligation to sell; and they didn’t.

Had either Coutinho or Van Dyke considered how their situation might change in the future when entering in to long term contracts, perhaps even a footballer’s intelligence would have been enough to realise that one potentially likely scenario could be interest from a perceived bigger club, met with a resistance from their current club to sell their star player.

So why didn’t they insist on release clauses or ensure their contract contained clear triggers in the event of another club’s interest?

We’ll never know the true answer, but perhaps both got too wrapped up in the joy of their new contracts and didn’t have the foresight to consider what might happen further down the line. Sign the contract now, worry about the rest later.

Such a situation is not uncommon in the construction arena, where a contractor will sign a contract and be delighted at the deal as it sits on the table, but not consider how the landscape might look if changes occur that require reliance on the conditions of the contract at a later date.

Many disputes - especially on performance output based contracts in the process sector - centre around what the contractor’s expectation was in the event of a change versus the client’s. Of course, each alleged change to a contract must be assessed on merit, but too often it’s difficult to believe that neither party considered such occurrence a possibility at the outset.

If you’re a contractor, ask yourself what the likely changes and risks may be further down the line. What could change? How will the contract deal with the changes? What are the boundaries of responsibility and liability? If you need to install 2 flux capacitators instead of 1, will you be paid for that or is it your risk as part of the deal? Are you sure? Is the contract clear?

Nobody has a crystal ball and it’s reasonable to say that most parties enter in to a contract and don’t envisage significant change from the outset, but changes in construction often follow common themes.

Clearly, not all footballers are so na?ve and not all contractors enter in to contracts with their eyes wide shut, but next time you’re about to sign a new contract, think about the future, think about poor little Phil and Virgil Van Sad and ask yourself if that’s a position that you want to be in?