Football is beset by instant judgments and fickle decision making. Vast sums of money can be at stake and in such a turbulent industry clubs need a proper grip on HR and employment law. Then there are the problems posed by players kicking their cats and sending offensive social media posts. Many cases highlight that professionalism is lacking in UK football, even in the ultra-rich Premier League, writes Dean Fuller
The dismissals of eight Premier League managers to date this season, including Ole Gunnar Solskjaer from Manchester United, Nuno Espirito Santo from Tottenham Hotspur, Steve Bruce from Newcastle United, Daniel Farke from Norwich City, Rafael Benitez from Everton and Claudio Ranieri from Watford is a record and highlights the often harsh world of professional football employment.
But away from the tabloid headline stories, there are a host of key employment law issues to consider for managers and others working in professional football. Here are 10:
1. Support staff can be collateral damage when a manager leaves: When the manager of a football club is sacked, technical and support staff often end up losing their jobs too. That can happen when the manager is dismissed or when their replacement brings in their own coaching staff.
2. Contracts are often poorly drafted: Many coaching staff at football clubs – below manager level – often have contracts that are poorly drafted as a result of taking insufficient or non-specialist advice. Coaches and other support staff can sometimes sign a contract too hastily if they see an appointment as a big break. They may also take advice from individuals they trust (such as agents) who are not independent legal experts and have vested interests of their own.
3. Make sure performance targets needed for bonuses are clearly defined: The contractual provisions for measuring performance (for example, league position, trophies won, goals scored and conceded) are normally quite straightforward. However, there can still be confusion caused, particularly if one side to the contract allows ambiguous language in the hope of using that ambiguity to their advantage later on.
4. Take note of excessive garden leave clauses: A common contractual issue is excessive garden leave, sometimes of up to a year. This requires a coach to take a lengthy break from the game, to the possible detriment of their career.
For example, several years ago Crystal Palace applied to the court for an injunction to hold Steve Bruce to a nine-month period of garden leave after he purported to resign and the club refused to allow him to talk to Birmingham City. If a coach is seen to be away from the game for a significant period, then the market value of that coach can erode. One possible solution is to negotiate a pay in lieu of notice or liquidated damages clause instead, such as the one that applied when Blackburn Rovers sought to part company with Henning Berg.
5. Lack of pro forma employment contracts for technical staff: Standard contracts do not exist for many support staff and other football club employees, leaving greater room for confusion and disputes to arise.
6. Constructive dismissal can apply in football: For example, when a club changes the terms of a job role without consent. One example is the case of James McBride, Under-19s manager at Falkirk Football Club, who made a successful constructive dismissal claim after responsibility for picking the team was transferred to the director of the youth academy.
7. Clubs can adopt an aggressive approach to avoid pay-outs if they feel the manager is playing hardball: When seeking to dismiss staff, football clubs have been known to take aggressive methods to avoid or reduce pay-outs. This can include trawling through emails, expenses and social media posts to find an alleged breach of contract on the part of the sacked employee.
Even if an action took place a long time in the past and no adverse impact on the club has materialised, it can still be found to be a breach of contract on the part of the employee. For example, in 2015 the technical director of Leeds United was dismissed. His wrongful dismissal claim was unsuccessful after it transpired that he had sent a pornographic image by email to other staff members some five years previously.
8. Take note of what contracts say about social media: Clubs are increasingly inserting specific clauses in contracts relating to what staff and players can say about the club on social media and/or any content posted which may bring the club into disrepute. The threat of loss of valuable sponsorship deals to both clubs and players alike is a serious one, as has recently been illustrated by the emergence of a video on social media showing Kurt Zouma of West Ham United kicking and abusing his own cat.
9. Cultural alignment between employer and employees is more of an issue in football than in many other industries: Executives and other staff (such as medical staff) coming into football from other industries may be inadequately prepared for the particular culture and working practices within football clubs. Even for those already within the world of football, a cultural misalignment between club and staff can be a frequent cause of employment issues and contract terminations.
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10. It can be difficult to find another comparable job in football: This needs to be built into offer and exit terms. Coaches and support staff can face stigma for being sacked or be tarnished by association with a team’s performance. This underlines the importance of taking the right advice at the outset and making sure contracts are clear, watertight and understood by all parties and that the risks are reflected in change of control clauses, termination payments etc.
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