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Has Football Scored an Own Goal?

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There have been a number of high profile stories in recent weeks involving football and various aspects of employment law. Despite the power wielded by some of today’s so called top players and managers, they remain employees and as such are subject to the same employment laws as the rest of us. Likewise, they have the same rights and are not shy of enforcing these and of course have the financial means to do so when it matters. In no particular order of merit, we look at some of these and the issues involved which will doubtless be the subject of continuing litigation and both front and back page headlines for some time to come.

GoalKicking us off is Carlos Tevez, the Argentinean forward who “plays” for Manchester City. His wages are said to be £198,000 a week which City has not paid since he left the country without their permission in November. This followed a dispute between Tevez and City manager, Roberto Mancini during a game in September when Tevez refused to warm up as a substitute during the club’s Champions League defeat by Bayern Munich.

His decision to spend the past 12 weeks in his native country has already cost him almost £1.2m in fines for gross misconduct and he is expected to drop a planned appeal to the Premier League. He arrived back in England this week after what amounts to more than three months’ unauthorised leave and immediately faced the threat of another fine by his employers.

Most of us could expect to be dismissed for gross misconduct and arguably, translating his actions into employment law parlance, the club would allege that he refused without good cause, to carry out a reasonable and lawful request, namely take to the field of play and do what he is paid to do.
If he were ultimately dismissed, it would hardly be worth bringing a claim for unfair dismissal in the Employment Tribunal in view of the statutory cap on compensation. Rather, he would be advised to bring a claim for wrongful dismissal/breach of contract in the High Court, relying upon the unexpired period of his fixed term contract.

Fabio Capello, the England team manager resigned last week in the wake of the John Terry captaincy affair following a dispute with his bosses at the Football Association over whether JT should remain England captain in light of the allegation of racial abuse for which he faces criminal charges later this year. Mr Capello took the view that JT should remain captain of the national side and this was not shared by his employers who came out and publically stated as such. It is a moot question as to whether or not Mr Capello would have grounds to claim constructive dismissal on the basis that he was arguably publically undermined by his employers and this is why he chose to resign. If that amounted to a breach of contract, a claim for constructive dismissal would have some merit. However, Mr Capello has apparently been adequately compensated for the remainder of his contract and again, whilst it would make interesting headlines, litigation is unlikely to follow.

John Terry himself is no stranger to the courts and controversy and will face charges in July of racial abuse towards the QPR player, Anton Ferdinand, who, to add spice to the issues, is the brother of Rio Ferdinand, his England team mate. If found guilty, would he face dismissal by his employers, Chelsea Football Club, on the basis that he has committed an act of gross misconduct which brings the Club name into disrepute?

It is, of course, entirely possible that he could have faced internal disciplinary proceedings when the allegation was made (which we should add, he strenuously denies). Where an allegation of misconduct is denied, the employer need only show (in order to fairly dismiss the employee), that there was a genuine belief, based upon reasonable grounds following an investigation, that the alleged act had in fact taken place. Therefore, Chelsea may have been justified in dismissing him for gross misconduct. They chose not to do so and it remains to be seen whether Mr Terry will be convicted when he appears before magistrates in July and if so whether he will then face dismissal proceedings.

Not to be outdone, the Liverpool and Uruguayan striker, Luis Suarez, was found guilty by a Football League panel of racially abusing the Manchester United and France defender, Patrice Evra, during a game in October last year. He was banned for eight games and despite the findings of the panel, was publically supported by his employers and in particular by his manager, Kenny Dalglish.

On his return to action , Mr Suarez rather surpassed himself by refusing to shake the hand of Mr Evra during the traditional line up of teams before last week’s match between the two Clubs. Apparently, he had assured his employers that he would shake hands but then chose not to do so and this caused consternation and uproar which sparked further scenes of unrest between both sets of players.

One might question whether or not Mr Suarez should be disciplined and even dismissed by his employers because many feel that he has brought the apparent good name of Liverpool Football Club into disrepute. Most of us would expect to be dismissed if we were found to have made racist remarks to a colleague in the workplace and indeed Mr Suarez did even admit to using the term “negro” which he claimed did not have the same perjorative meaning in his native Uruguay.

Harry Redknapp was recently acquitted of criminal charges of tax fraud following a long Crown Court trial involving allegations that he cheated HMRC out of tax due on so called bonus payments received several years ago when he was manager of Portsmouth. The investigations against Mr Redknapp and his then chairman, Mr Milan Mandaric (now owner of Sheffield Wednesday) had been continuing for several years before the opening of the criminal trial. During this time, Mr Rednapp has moved clubs and is now manager of Tottenham Hotspur with whom he has enjoyed relative success with the team riding high in the Premier League.

In the wake of Mr Capello’s departure, Mr Redknapp is being championed as the next England team manager and appears to be the only genuine candidate for the job. His employers at Tottenham stood by him amidst the allegations of fraud whereas they may of course have chosen to dismiss him on grounds that facing allegations of a serious criminal offence was incompatible with his position and made this untenable. Employers may be justified in dismissing employees who face criminal charges even before these have been proven if it is shown that the name of the employer is likely to be tarnished or otherwise brought into disrepute. In addition, criminal law requires a higher standard of proof than employment law so that, for example, an employee who is accused of theft and dismissed by his employer but later acquitted of criminal charges in relation to the same incident, is not necessarily unfairly dismissed.

It seems that footballers just do not know when to keep their mouths shut or refrain from using social media websites to voice their opinions and vent their feelings. For the rest of us, disciplinary action including dismissal would be expected if we publically criticised our employers. It seems the same rules do not apply to many of today’s players and indeed no less an authority than Sir Alex Ferguson has recently warned of the dangers of player power claiming that the balance has swung too far in their direction.

It is a little known fact that Mr Ferguson himself once took his first club, St Mirren, to an Employment Tribunal claiming unfair dismissal!

Paul Grindley can be contacted on (0113) 399 3424 or paulgrindley@keeblehawson.co.uk
 

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