A recent spate of public vocal exchanges within the game could be about to raise a number of interesting employment law issues.
What went on inside the changing rooms and training grounds of professional football clubs used to be a secret kept behind stadia turnstiles.
But as instances of managers openly criticising their players become more prevalent, and vice versa, it is no longer a case that the public only judge their teams on what they see on the pitch.
This recent spate of vocal exchanges within the industry could be about to raise a number of interesting employment law issues.
From an employment lawyer’s perspective, the criticism of players openly in the media and in particular the questioning of players’ courage or professionalism, raises interesting questions about the effect these comments may have on the trust and confidence between the employer and employee.
That said, of course we know that the player/club relationship is not a classic employment relationship by any means, but it is still interesting to consider whether such comments and criticisms could be taken to be a repudiatory breach of contract such as would then allow the perpetrator of the comments to treat himself as having been constructively unfairly dismissed.
There is also a valid argument that such conduct and negative comment could in fact damage the players’ personality rights and could affect them in the future in the transfer market and as to their ‘saleability’.
The case of Barea v Neuchatel Xamax is interesting in this context as it paved the way for players to challenge the power of managers whose decisions have a bearing on their future.
Eddy Barea played for Swiss Super League club Neuchatel Xamax under the management of head coach Miroslav Blazevic. During a post-match interview Blazevic claimed that Barea had been ‘an idiot’ and ‘a traitor’ by refusing to take the manager’s instruction and play the offside trap when the opposition goalkeeper took a free kick. Barea claimed that the move would have been too risky.
As a result Barea was excluded from first-team contact and forced to train with the under-21 team. Barea subsequently terminated his contract and went on to claim, and be awarded, compensation.
At a later tribunal it was upheld that Barea’s termination of his contract was valid and that his refusal to take instruction from his manager was the first occurrence of-non conforming behaviour in five years. Barea’s exclusion from the main squad was seen as disproportionate sanction to his behaviour. The court upheld Barea’s claim of compensation, as his market value would be affected by his inability to train and play with the squad at the level that he had been contracted.
There are several reasons, including financial implications, why the claim of repudiatory breach by a player is likely to remain a rare occurrence in practice. However, in an age where open criticisms are surfacing more regularly these relatively novel scenarios may well give rise to new and radical reactions by players.
Paul Shuttleworth is partner and head of employment at JCP Solicitors