Introduction
As elite-level leagues, sporting associations and other stakeholders debate whether competitions can be restarted in an era of physical distancing, it has been reported that some professional football and rugby clubs are proposing to require players to sign disclaimers in relation to the health risks posed by Covid-19 before they resume training.[1]
In this article, John Mehrzad KC and Joseph Bryan, both of the Littleton Sports Law Group, discuss the legal consequences of clubs seeking to compel players to train or play and whether such ‘disclaimers’ are of any legal effect.
The article will set out relevant first principles of employment rights in the UK, then suggest that players may be entitled to refuse to play or train due to Covid-19 concerns, before explaining how waivers of liability for Covid-19-related personal injury or death are not enforceable.
First principles of employment rights
Turning to first principles, top-level professional footballers and rugby players are engaged by their clubs under a contract of employment. The relationship between club and player is therefore subject to employment law, just as in any other sector of the wider economy.
A fundamental principle of that relationship is often said to be the so-called ‘work/wages bargain’: in exchange for the employer’s obligation to pay wages or other remuneration, the employee agrees to perform his work for the employer or, at least, to be ready and willing to do so.[2] These are mutual obligations.
It follows that if an employee fails to work, the employer is not obliged to pay the wages.[3]
The application of this basic ‘work for wages’ principle is, however, generally limited to cases of deliberate or unreasonable refusals to work (and in such cases the refusal is also likely to amount to misconduct leading to the employer taking action under its disciplinary policy). Moreover, the basic principle is easily displaced, for instance by the express and implied terms of the employment contract.
Refusal to train or play
What, then, of the situation in which a player-employee consciously declines to attend training or play in a match because of a fear of contracting Covid-19?
Training and playing are the core elements of the player’s day-to-day duties as an employee. But the ‘work for wages’ maxim above is too basic to be of any assistance here; the club would be ill-advised to leap to suspending payment of wages (or to issuing disciplinary fines) on that simple premise alone: the answer lies in the more nuanced rights and duties of clubs and players established by statute, contract and common law.
It is important to consider more closely players’ statutory rights under the Employment Rights Act 1996.
Paraphrasing s. 44(1) of the 1996 Act, an employee has the right not to be subjected to any detriment by his or her employer done on the ground that “in circumstances of danger which the employee reasonably believed to be serious and imminent” the employee took or proposed to take appropriate steps to protect himself or herself (or others[4]) from the danger. There is an equivalent provision, in s. 100 of the 1996 Act, which deems a dismissal for that reason to be an unfair dismissal.
The application of these rights to the danger posed by Covid-19 is obviously untested; nor are we aware of any relevant case-law on s. 44 or s. 100 dealing with any other pandemic disease. It has, however, been held that the statute covers any danger “however originating”,[5] so it seems that Covid-19 falls within the scope of these provisions. Whether or not a player has a reasonable belief that the danger is “serious and imminent” will depend on the particular facts,[6] but relevant factors will no doubt include the severity of the outbreak and the fact that the virus is spread by close contact – an essential feature of contact sports such as football and rugby.
Further, whether or not an outright refusal to attend training or a match is an “appropriate” step under s. 44 may depend on the extent of the measures the club has implemented to minimise the chance of Covid-19 transmission. In top-flight football, a temporary ban on tackling, disinfecting pitches and daily health screening are among the innovative measures reportedly being considered.[7] However, health risks will remain or, certainly, there could be a reasonable belief that they will remain.
What is clear is that a club which takes disciplinary action against a player will be subjecting him or her to a detriment. So, at the very least, if it does so on health and safety grounds, the club is risking exposure to a claim for uncapped compensation, which could include any withheld wages and fines unlawfully imposed.
A similar result – uncapped compensation – might be achieved via the parallel ‘whistleblowing’ provisions under s. 47B (detriment) and s. 103A (unfair dismissal) of the 1996 Act. Although a detailed examination of these provisions is beyond the scope of this article, a player may well benefit from these additional protections if he or she complains (to the club or even, in some circumstances, the Health and Safety Executive or the newspapers) about the club’s Covid-19 health and safety practices and is sanctioned as a result.
There are also special features of professional sport which affect the extent of the obligation on a player to follow a club’s reasonable instruction when compared with employees in other industries. In particular, players are obliged to maintain their fitness: indeed, their careers – and ability to serve their employers – depend on it. An express term to this effect is commonly found in professional playing contracts. For example, the express terms of the standard-form Premier League contract oblige the player:
except to the extent prevented by injury or illness to maintain a high standard of physical fitness at all times and not to indulge in any activity sport or practice which might endanger such fitness or inhibit his mental or physical ability to play practise or train.[8]
A player might argue that the club’s instruction to return to full training and competitive matches, while others in society are subject to restrictive physical distancing rules, is flatly inconsistent with the contractual duty to maintain fitness. Playing contact sport during the pandemic could be construed as an “activity, sport or practice” which “might endanger” physical fitness by exposing players to the risk of contracting the disease. A player might thereby escape the prima facie obligation to follow the instruction to return to work.
Clubs’ health and safety obligations and attempted waiver
Clubs owe their players a duty to provide a safe system of working as part of their duty of care.[9] They may also be liable for a breach of statutory duty if they fail to comply with their obligations under the various health and safety regulations.
For present purposes, the key point to note is that employers are required by s. 1(1) of the Employers’ Liability (Compulsory Insurance) Act 1969 to take out insurance against liability for personal injury or disease suffered by their employees in the course of their employment, subject to the conditions and exemptions in that Act. Failure to have appropriate insurance in place is a criminal offence punishable by a fine.
The practical consequence in the Covid-19 context is that existing policies may not cover the current pandemic and premiums for appropriate top-up insurance are likely to be costly. It is easy to envisage that a player who contracts the disease at the training ground or on the field of play and whose career is severely adversely affected by the consequences of the disease will suffer extensive financial losses. Even if a player recovers, their performance (and consequent earning potential, especially for appearance and goal-scoring bonuses) may be impaired for many weeks and months. Insurance premiums may therefore be unaffordable for some clubs, particularly in the lower leagues.
Against this background, it is understandable that the idea of obtaining players’ signed consent in an attempt to disclaim a club’s potential liability is superficially appealing.
However, such ‘disclaimers’, in so far as they exclude or restrict liability for death or personal injury resulting from negligence, will be void by reason of s. 2(1) of the Unfair Contract Terms Act 1977,[10] and, in so far as they exclude or restrict liability for other types of loss (such as financial loss), they are subject to the statutory requirement of reasonableness.[11] Depending on the wording of the disclaimer, it may also fall foul of other statutory ‘voiding’ provisions.[12]
Clubs should not therefore have high hopes at all of the courts upholding such clauses, even if contractually agreed by the player.
Conclusion
It is vital that clubs fully consider their legal position before imposing a compulsory return to training and competitive matches and that, likewise, players consider the extent to which they may be legally entitled to refuse to return. Attempts by clubs to exclude liability for Covid-19-related personal injury, or even death, will be fraught with considerable risk and players may be entitled to refuse to train or play if instructed to do so.
Of course, this must all be seen in context of rapidly rising insurance premiums. As we have set out, it is, however, mandatory to have appropriate insurance in place on pain of criminal liability. If clubs simply cannot afford to take out such cover or to face the risk of high-value claims by players, this will at the very least be a factor weighing heavily on the minds all stakeholders as they try to find a way of resuming paused seasons in professional contact sports.
[1] See, in relation to professional rugby, ‘Premiership players and clubs face hard choice over waivers on rugby’s return’ (The Guardian, 9 May 2020) (https://www.theguardian.com/sport/2020/may/09/rugbys-return-may-be-hampered-by-premiership-players-insurance-cover?CMP=share_btn_tw) and, in relation to professional football, ‘We won’t sign! Premier League gives players and staff Covid-19 forms to get Project Restart rolling’ (Daily Mail, 7 May 2020) (https://www.dailymail.co.uk/sport/football/article-8298691/Premier-League-gives-players-staff-Covid-19-forms-Project-Restart-ball-rolling.html).
[2] Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 at 515.
[3] Miles v Wakefield Metropolitan District Council [1987] AC 539.
[4] This provision would mean that players would be covered by its protection even if they believe they are not in serious and imminent danger but that others, such as a vulnerable pregnant partner or elderly family member living in their household, would be at such danger as a consequence of the player contracting Covid-19 in training or whilst playing.
[5] Harvest Press Ltd v McCaffrey [1999] IRLR 778 [17].
[6] Oudahar v Esporta Group Ltd [2011] ICR 1406.
[7] ‘Premier League: restrictions in place for team training under “Project Restart”’ (BBC Sport, 12 May 2020) (https://www.bbc.co.uk/sport/football/52635005).
[8] Premier League Handbook: Season 2019/20, p. 310 (https://resources.premierleague.com/premierleague/document/2020/05/11/9de08b33-1f94-4ac7-9868-8bb157807062/2019-20-PL-Handbook-070520.pdf).
[9] Wilsons & Clyde Cole Company Ltd v English [1938] AC 57.
[10] Johnstone v Bloomsbury Health Authority [1992] QB 333.
[11] See s. 2(2) of the 1977 Act.
[12] For example, if the ‘disclaimer’ seeks to exclude or limit the operation of any provision of the 1996 Act (such as a purported waiver of the employee’s rights to take appropriate steps in circumstances of danger under s. 44), it will be void to that extent. It is also not possible to preclude, by contract, a worker’s right to make a protected disclosure: s. 43J(1). This may be relevant if the ‘disclaimer’ seeks to keep confidential the health and safety measures the employer has taken to combat the spread of Covid-19.
