In a previous edition (Law Update issue 269, May 2014), we considered the Framework of Player contracts from the perspective of the duties owed by a player/athlete to the employer.
In this edition, we had intended to address the obligations owed by the employing club to a player, but the actions of Mr Suarez at the FIFA World Cup 2014, have added an extra dimension. We identify not only the employer’s obligations, but also the potential impact of a player’s conduct on the relationship with the employing club.
Club/Employer Obligations to the Player
The “Player Contract” as a hybrid commercial and employment arrangement, must give the employer a substantial degree of protection and place significant obligations on the player.
Opportunities can arise for players to take advantage of their commercial value and the employing club will want to ensure adherence to its contractual obligations to minimize the risk of disputes which might ultimately lead to the loss of their asset.
The club has a number of obligations (non-exhaustive examples below).
Release the Player for representative duty: This is a key term in a professional sports contract for those who aspire to play at the highest level. This is not “implied” because the primary focus of the contract is the performance of the player for and on behalf of the club (for which he is remunerated). The Suarez affair also highlights the risks for a club which has no control over the on-field behaviour of a player away on international/representative duty.
The club will also have a number of negative obligations which will usually be subject to the consent of the player. For example, it is usual for the club to essentially undertake that it will not take or permit photographs of the player to be used for any purpose(s) other than those expressly agreed under the contract. Likewise, the club would usually expressly state that it will not make public any medical reports or records without player consent (save where it is required under the Rules of the governing body or as a matter of law).
However, even the most comprehensive express terms cannot cover every eventuality.
Certain terms may be implied into the performance of the contract. There will be a common expectation of minimum standards of behaviour and that certain types of conduct are unacceptable.
The employer typically has a number of non-exhaustive implied duties towards the player.
The Consequences of Player Misconduct
Depending on the sport at issue, the impact of player misconduct upon the employer is not often considered. Instead, there can be a shrugging acceptance that a player with behavioural misconduct issues will ultimately end up on the transfer market (a result sometimes engineered by the player’s agent) and the club will realise some meaningful cash for its now “damaged goods”. If a potential purchaser offers the right price, it can be difficult for a club to steadfastly insist upon an unenthusiastic player’s performance of his contract. The commercial value of a player is often referable to the unexpired term of his contract. In most circumstances a player who sees out his contract is ultimately a free-agent. Hence, clubs are rarely forced to the transfer table if they are intent on refusing a transfer.
Given that Mr. Suarez’s move to Barcelona has now been concluded, the comments below remain hypothetical, but they serve to illustrate the potential issues for the employing club (Liverpool FC) in the face of the player’s conduct.
Suarez’ contract included a release clause which could be triggered by an offer of £75m. However, the reportedly higher offers on the table pre World Cup could have been susceptible to reduction in the wake of Suarez’ biting offence and subsequent ban. An expensive and productive “asset” would be unavailable for several weeks of the English Premier League campaign. Far better that someone else absorb the period of non-productivity and that Liverpool have the cash to acquire a replacement for their potentially depreciating asset (and one which might be devalued further in the event of another substantial ban). In that latter eventuality, theoretically it would have been open to Liverpool FC to adopt a similar approach to Chelsea FC in the “Mutu” case (Law Update issue 269, May 2014) where the player was dismissed and was successfully sued for substantial damages.
There might indeed be an argument that Liverpool FC could recover the loss in value by seeking damages from the player. However, the employer has a commercial choice to sell or not and to accept or reject a bad bargain. Where Liverpool FC were not compelled to sell Suarez, they would be accepting the return on their investment; even if that devaluation flowed from the player acting in a manner far removed from an acceptable and “natural incidence” of the professional game.
Where an employing club can properly show that it has accepted a fundamental and repudiatory breach by the player it will be far easier to support a damages claim as in the case where Chelsea FC dismissed Adrian Mutu for drug offences. The theory is that where the misconduct is sufficiently serious as to amount to a repudiatory breach by the player, the employer may accept that breach and terminate the contract. Inevitably, commercial considerations are likely to weigh heavily on any employer considering such a course of action.
A Senior Associate in the Employment Department, John routinely works with the Sports Law practice group and his experience includes acting for English Premier League football clubs and a football charitable foundation during various restructuring processes. He has also represented rugby players and clubs in disputes and disciplinary hearings before governing bodies. John is a Judicial Officer for the UAE Rugby Federation and a Registered Lawyer under the UK Football Association Player Agents Regulations.