Football news has dominated the front pages as well as the back in recent days, as 12 clubs announced the formation of a new competition, the European Super League. The move has caused uproar amongst fans and rapidly taken on a political dimension, with both Boris Johnson and Emmanuel Macron condemning the proposal. Moreover, as our own Grahame Anderson has already set out here, the move is likely to have significant legal ramifications as well.
As at the time of writing, public statements from players whose clubs are poised to join the new competition have been few and far between. However, UEFA, the Premier League and the FA have said they will consider all measures available, including banning the players involved from any competition at domestic, European or world level. FIFA’s position is far from clear. In the circumstances, it’s a safe bet that some players’ contracts will have been carefully looked over in recent days.
We don’t know the precise contractual terms of the players involved, or whether players or their representatives were consulted before the move was announced. However, there are a number of contractual questions that are likely to feature:
- Has there been a breach of an express term of the contract? The standard form player contract within the Premier League Handbook includes an undertaking that the club will abide by the rules laid down by the FA, UEFA and FIFA. Rule L9 of the Premier League Rules lists the competitions that a club may enter and requires prior written approval for any others. Given the public statement issued by the Premier League, it is safe to assume that the ESL six did not follow protocol. Further problems will exist in respect of the UEFA and FA rules.
- Some contracts may also expressly envision play happening in a given league. Sanctions for breaches of the Premier League Rules range from a reprimand to expulsion and, as noted above, the Premier League have already said they will consider all measures available.
- Has there been a breach of an implied term of the contract? In addition to basic salary, many player contracts will feature significant bonus provisions pegged to appearances in (for example) the Premier League or Champions League. There are often further bonuses for achievements, whether goals scored or clean sheets, in a given competition. A player may well argue that there is an implied obligation on the club not to render these bonuses a nullity, or to take all reasonable steps to allow them the opportunity to succeed.
- Similarly, the standard form player contract also provides that the club will release the player for international duty as required. It would be difficult to argue that the parties intended that the club could sidestep this duty by rendering their players ineligible for competitions at international level, and a term may well be implied to prevent such a surprising outcome.
- Has there been a breach of the implied term of trust and confidence? The relationship between player and club is one of employment, albeit one where the employees have an unusual amount of bargaining power. This means that there will be a term implied that neither party will act in a manner calculated or likely to destroy the relationship of mutual trust and confidence between the parties. It is difficult to believe that many top-level footballers would be happy to find out that their international careers could have ended overnight. If clubs have acted unilaterally or failed to explain the risks involved to their players, they could well face an argument that the relationship of trust and confidence has broken down.
- Has there been a repudiatory breach of contract? Many of the matters set out above could well be fundamental or repudiatory breaches of contract – and a breach of the implied term of trust and confidence will always be repudiatory. In those circumstances, the player can either affirm the breach and carry on regardless, or they can accept the breach and terminate the contract.
The question of repudiatory breach doesn’t come up very often in the context of football. It may be that there is much going on behind the scenes between the players and clubs involved. Equally, given the reports that the clubs joining the ESL have been guaranteed a welcome bonus worth €200m-€300m each, it may have been assumed that any disquiet could be solved by a simple negotiation.
However, it is easy to imagine that some players wouldn’t be willing to write off their international career in exchange for a further pay hike. Some could currently be stuck with a contractual relationship they find unsatisfactory, or simply want to play hardball in any negotiations. Article 14 of the FIFA Regulations on the Status and Transfer of Players provides that a contract may be terminated by either party without consequences of any kind, either payment of compensation or sporting sanctions, where there is just cause. Just cause is not defined. The worst-case scenario for clubs would be that their players were entitled to terminate their contracts early without facing any sanction and simply move elsewhere. That would up-end the normal power balance between player and club and could lead to, at the least, some very difficult negotiations.
All of this remains speculation for now, and the establishment of a European Super League may yet be avoided following further discussions. However, it will be worth paying close attention to any expressions of dissent from players in the days and weeks ahead.
Commentary by James Green
