Inn the Field of Play – August 2016: Should Pep have more of a Hart?

There has been a lot of recent press interest regarding Jose Mourinho and Pep Guardiola's alleged treatment of Bastian Schweinsteiger and Joe Hart since their respective appointments at Manchester United and Manchester City. Mourinho is claimed to have required Schweinsteiger to train alone or with the under-21 squad and Guardiola is said to have made it clear to Hart that he would be his third choice moving forward. Hart is now reportedly on the verge of a loan move to Torino (albeit with City continuing to pay a proportion of his wages).

I am not expecting readers to have any great sympathy for either Schweinsteiger or Hart given the salaries they will still be being paid by their clubs. However, the recent press reports do raise the question as to what legal rights they might have, if any.

The Plaku case

Whilst very different facts, the Court of Arbitration for Sport ("CAS") recently ruled on Sebino Plaku's claim against Slak Wroclaw, a Polish Football club. Plaku is a 21 year old Albanian footballer and he claimed that:

• Wroclaw had sought to impose a pay cut on him, nearly two years out from the expiry of his contract;
• having refused to agree the pay cut, he was moved to the second team and then ordered to train alone in order to "get back to his normal sporting level";
• he was required to train three times a day, meaning he had to leave home at 6.45am and not return home before 9.30pm;
• deductions were made to his salary for four separate months;
• he was required to train during periods when other players were on holiday and was not allowed a day off over Christmas; and
• he also received disciplinary fines totalling 20,000 Euros.

FIFpro, the player's union, has reported that CAS, in ruling on the case, held that Plaku had been treated "appallingly" and that he had just cause to terminate his contract with Wroclaw. Whilst not a case involving English law, this does provide something of an indication as to the likely approach CAS will take on these types of issues.

What though is the position under English law?

It is well established, under English law, that a duty of trust and confidence will be implied into all employment contracts. Whilst historically there have been several iterations of this implied term, the accepted formulation is as follows:

"there is implied in a contract of employment a term that employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence or trust between employer and employee."

Where an employer does breach this implied term, the employee can then, provided they do not delay so as to waive any breach, resign with immediate effect and treat themselves as having been constructively dismissed by their employer.

Isn't the football industry a special case though?

It is often said that the football industry is unique and that football clubs should not be subject to the same rules as other employers. However, this argument has already been rejected, in the specific context of a constructive dismissal claim, by the Employment Appeal Tribunal.

In the case of McBride - v - Falkirk Football Club, the Employment Appeal Tribunal held that the Club could not, in seeking to defend Mr McBride's claim for constructive dismissal, rely on the fact that it and others in the industry traditionally treated employees in a brusque and robust manner. Instead, the Employment Appeal Tribunal made it clear that it was for the Tribunal to assess objectively whether the conduct in question was calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and employee.

There are also other examples of constructive dismissal claims being upheld within football. For example, in a more high profile case in 2009, the Premier League Managers' arbitration tribunal upheld Kevin Keegan's claim for constructive dismissal against Newcastle, reportedly awarding him £2 million.

What level of conduct is necessary to amount to a breach of the trust and confidence?

It is clear that mere "unreasonable conduct" will not be sufficient to breach the implied term of trust and confidence. Instead, more is required and the conduct must be so serious to go to the very heart of the employer's relationship with the employee.

In the case of Joe Hart, if he has simply been told that he has dropped down the pecking order, is now third choice and is looking increasingly likely to be allowed to leave the club on loan, it is difficult to see that this would amount to a breach of the implied term (even if fans of Joe Hart may believe the decision to be unreasonable). However, in Bastian Schweinsteiger's case, if the press reports are to be believed, it is possible that he has a much stronger case.

If that's the case why hasn't Schweinsteiger resigned?

If a player resigned in response to a breach of the implied term and could legitimately claim they had been constructively dismissed, they would be entitled to bring a contractual claim against their club for wrongful dismissal (on the basis that, whilst they had resigned, the Club would be deemed to have dismissed them in breach of contract). The player would then claim damages equivalent to the sums they would have received during the remainder of their contract.

So far so good. However, the player would also be under a duty to mitigate their losses by actively seeking a new contract with a new club and, if they did secure a new contract, would have to give credit for the sums received under that new contract. In addition, they would also be faced with the commitment, delay, uncertainty and expense of having to issue arbitration proceedings not only to recover the sums due to them but also to establish that they were no longer under contract with their old club and were free to move to a new club.

As a result of the above, players will often prefer to remain with their club, whilst perhaps seeking assurances that they will be allowed to move if the right move comes up. They can then wait for that move secure in the knowledge that their salary will continue to be paid until it does.