Reflections on a sporting summer

02 November 2012

James Froud

Thomas Heatherwick's cauldron has burned-out. When the last of his copper petals was extinguished on Sunday last, it brought an end to the Festival of Flame, and a long, remarkable, summer of sport. Referring to the Olympic and Paralympic Games, The Times' brilliant Simon Barnes described the probably-never-to-be-repeated jamboree as "the finest celebration of humanity in a quarter-of-a-million years of our existence; the best party in the history of the human race". Rousing stuff! And few would disagree.
 
Indeed, for many, the ‘lympic-odyssey will have more or less erased memories of the faintly-recalled-but-surprisingly-enjoyable European Football Championship, won by Spain, again. Remember that? It was this year. In June, believe or not. Yes, though it may feel like a figment of one's imagination, it was football (inevitably) that kicked-off the Summer of Games (and also the Olympic Games, in fact) - and even if the domestic season got underway without the usual hyperbole, it will be to football that the headlines will no doubt return once the latest British craze for 'winning' subsides. Congratulations Mr Murray.
 
As an aficionado of association football, it was interesting to experience how conspicuously our national sport was discarded from the national conscience this summer. The love was lost; its importance diminished. By comparison to "the best party in the history of the human race", it somehow felt broken and impure. And, as if on cue, publication of the Hillsborough Independent Panel's (HIP) report last week has catapulted us back to the 80s, when "football" undoubtedly was in the doldrums, a by-word in some circles for the disaffected underclass.
 
Of course, this strange feeling of ambivalence will pass. The passions will return and the HIP report could even, strangely, prove the catalyst. Yet the football fraternity may have been glad of its recent lower profile. With the nation distracted by a fever of Othersportitis, some legally interesting football stories have escaped normal levels of attention. From an employment lawyer's perspective, the summer offered much to ponder, from chocolate ice creams, to oldcos, newcos and even newcy oldboys; all illustrating a curious relationship between sport and the law. 
 
Racism
 
The John Terry / Anton Ferdinand racism row had, admittedly, received plenty of press coverage leading up to and during Terry's trial at Westminster Magistrates Court (WAC). As we all know, Terry was acquitted of racially abusing Ferdinand. The prosecution failed to prove "beyond reasonable doubt" (the criminal burden of proof) that Terry's use of offensive words were intended as an insult to Ferdinand. However, Judge Riddle did say that Terry's explanation for his actions were "under the cold light of forensic examination, unlikely", leaving the door wide open for the Football Association to press ahead, as it has done, and charge Terry under its own rules of conduct.
 
It will be interesting to see how Terry's employer, Chelsea Football Club, reacts once/if the music finally stops on this saga (we had another instalment at the weekend). Whether or not the FA disciplinary panel reaches a different conclusion to the WAC (as it may do, using the "balance of probabilities" test), this whole sorry affair has reflected poorly on football and has arguably, through association, brought Chelsea FC into disrepute. In so doing, it is likely that Terry's actions will have breached express terms of his employment contract which could technically justify his dismissal. Of course, this will never happen, but if the Club takes no action whatsoever, its vulnerability to internal race discrimination claims will only increase. If an employer wishes to defend allegations of race discrimination, it will want to show that it does not tolerate discrimination and has taken active steps to prevent such a culture.
 
If Terry's mutterings are ignored, it could spell trouble for his employer. And this is no empty threat. Mr Ambramovic need only speak to Paul Scally, his counterpart at Gillingham Football Club, to realise that football clubs are not immune from employment laws. On 30 July 2012, the Ashford Employment Tribunal upheld Mark McCammon's claim of race discrimination against the Gills, subsequently awarding him more than £68,000 in compensation.  McCammon, a black footballer from Barbados, claimed that he had been unfairly dismissed in an act of race-motivated victimisation. McCammon alleged that he had suffered less favourable treatment compared with white players because the Club refused to pay private medical bills to help him regain his fitness and that he was ordered (along with two other black players) to attend the training ground in treacherous snowy driving conditions, with the threat of their wages being docked, when white players were not.
 
The compensatory award to McCammon is unlikely to cause a stir to clubs in the higher echelons of the game, where players can earn more than £68,000 in one week, but they should not rest on their laurels.  Discrimination compensation is potentially unlimited and successful claims by high earners can lead to astronomical awards. It has been seen with sex discrimination claims in the City, and there is no reason why a footballer, particularly one nearing the end of his career on a good contract at a big club, could not recover a six or seven figure sum by successfully suing for discrimination. McCammon has already led the way in relation to race, but age discrimination is another area that is ripe for exploitation.
 
Twitter
 
Seemingly wishing not to be outshone by his former England central defensive partner, Rio Ferdinand made the headlines with an ill-advised tweet. As Twitterers passed comment on the Terry trial, one described Ashley Cole (who had given evidence in support of Terry) as a "choc ice", meaning black on the outside, white on the inside. Ferdinand responded by tweeting "I hear you fella! Choc ice is classic. Hahahahahaha!!" This landed Ferdinand with a £45,000 fine from the FA for improper conduct and bringing the game into disrepute.

Even for someone of Ferdinand's wealth, that should prove a firm slap of the wrist, although the response of Ferdinand's employer, Manchester United, has appeared less chastening. The reaction of Sir Alex Ferguson, publically at least, was to warn Ferdinand about his Twitter use and to express surprise that the FA had not challenged players' use of Twitter in the past. This may be a fair point, but Ferdinand is employed by United, not the FA. Ferguson confirmed that United have issued instructions that players shouldn't tweet about Manchester United, but offered no insight to whether Ferdinand was subject to internal disciplinary proceedings.

One presumes that instructing players not to tweet about their club is a brand protection point, although it is questionable whether such an approach really achieves its objectives (and could even prove counter productive) given how closely players are associated with their clubs. Moreover, if clubs are seen to be turning a blind eye to players' personal Twitter contributions, where does that leave the club in the event of a complaint from inside the club about a fellow employees' tweets? In the discrimination field, for example, an employer will be held vicariously liable for its employees’ actions unless it can show the employee was acting on a frolic of his own. No doubt, if Manchester United has a social networking policy, it has been drafted with a good deal more care than Ferguson implied, but for my mind, a simple instruction along the lines Ferguson mentioned does not go far enough. 
 
Twitter shows no signs of abating. It offers enormous opportunities for employers to plug into their target audiences - and for their employees to build on the brand by engaging in a "conversation" with that audience. But it obviously presents serious dangers too. In addition to Ferdinand's ill-advised tweet, we have recently seen McLaren's Lewis Hamilton disclosing highly sensitive technical data (a sackable offence in any other industry) and of course there was the Kevin Pietersen parody twitter account that has caused so much damage to the morale of the England cricket team.
 
Sporting organisations must take the age of Twitter seriously. They should think seriously about implementing clear policies on use. I would not advocate a blanket ban, as that impinges on basic human rights of expression and cuts off a huge commercial opportunity. However, in addition to policies, they should think carefully about how to respond to inappropriate tweets: What message is the employer sending out? And what sharks might lurk beneath the waters of employment rights?  
 
Glasgow Rangers
 
The summer goings-on at Rangers Football Club were nothing short of sensational. The world's most decorated football club, in domestic terms, was liquidated (courtesy of extravagant debts and unpaid taxes arising under a dubious employee trust scheme) and expelled from the Scottish Premier League. With all assets of the old company being sold to a new company the "club" lives on, albeit in the bottom tier of Scottish football. How the mighty have fallen.
 
Once confirmation of the liquidation surfaced, a number of the club's first team players began objecting to transferring to the newco. Whether due to naivety, specific advice, or a desperate attempt to hoodwink the club's most prized assets, Charles Green (leading the consortium take-over) stated the players were obliged to move to newco; warning that a refusal to do so would place them in breach of contract. It was an interesting stance for him to take. No doubt he was relying on a particular interpretation of the Transfer of Undertakings (Protection of Employment) Regulations 2006 ("TUPE") which provide for the automatic transfer of employment contracts when there is a transfer of a business from one company to another. However, TUPE also specifically entitles employees to object to a transfer (regulation 4(7)), which has the effect of terminating their employment as a matter of law without liability on the employer.
 
Green took the view that the players' objections had come too late, their employment having already transferred when newco acquired the assets. This argument had some potential notwithstanding the players' citing a lack of transparency in the process for their inability to object to unknown circumstances. However it ignored another important aspect of TUPE. Regulation 4(9) allows employees to treat themselves as dismissed where a transfer involves or would involve a substantial change in their working conditions which is to their material detriment. Some of the players clearly had this in mind when they spoke of the uncertainty created by the liquidation, the likelihood of Rangers losing its place in the SPL (as has now been confirmed) and their wish to play at the highest level. It seems to have done the trick, as those at the centre of the row have now secured transfers.
 
For many, TUPE is either unknown, or a baffling construct decreed from Europe. But the Rangers situation brought this enigmatic piece of legislation to the masses; it was sexy, just for a very short space of time.
 
Andy Carroll
 
As the football transfer window approached, it was interesting to follow Liverpool manager, Brendan Rodgers', observations on the future of Andy Carroll. Somewhere close to the outskirts of tact, Rodgers made it as plain as it was possible that Carroll did not feature in his plans; that he was not good enough for the silky passing style that Rodgers wishes to implement. And so Carroll was shipped out to West Ham, on loan, to become the fulcrum of the Sam Allardice brand.
 
In some respects, there was nothing unusual about these events. Players are regularly cast aside, surplus to the requirements of a new manager. However, it is rare that it happens so publically, and even more so that it should happen to a player who cost £35m when Liverpool signed him from Newcastle on 31 January 2011.
 
UK employment law recognises a concept of mutual trust and confidence, which is a term implied into every employment relationship. A breach of that term may constitute a fundamental breach of the employment contract. In circumstances in which an employer acts in such a way as to undermine an employee's trust and confidence, the employee is likely to have grounds to resign and allege constructive dismissal. In doing so, the employee would be entitled to claim damages for the value of the contract still to run (normally just the notice period) and also potentially compensation for unfair dismissal (presently capped at £72,300), both subject to the duty to mitigate loss (i.e. use reasonable endeavours to minimise loss). 
 
Carroll's circumstances at Liverpool were very much in constructive dismissal territory. It is difficult to conceive of how Carroll might continue to have trust or confidence in his employers at Liverpool. Of course, footballers rarely bring employment claims, particularly in the higher echelons of the game. This can be put down to a number of reasons; although the low value (by comparison to a top footballer's wage) of the compensation cap and the relative ease by which loss can be mitigated probably act as deterrents. However, Carroll's case is interesting. Rightly or wrongly, his stock has probably fallen since joining Liverpool. If he were to move on, it is not certain he could secure a contract on the value offered at Liverpool. In those circumstances, Carroll's losses could be very significant. For now, this opportunity has passed for Carroll, but if football managers continue to ridicule their players in public, it can only be a matter of time before someone tests the water with such a claim.

The great summer of sport has passed. Autumn is upon us and normality returns; the intriguing dynamic between sport and employment law very much continues.

This article was written by James Froud, Employment Associate and published on www.gsj.com.

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