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You’re not fit to wear the shirt

Certainly England players must accept some limitations on their rights if they wish to wear the shirt.  Specifically their right to freedom of expression and, arguably, their right to privacy.  The former, if not the later, would typically be engaged if a player decides to tweet to the world their musings on life, liberty and the pursuit of happiness.  Potentially their status on Facebook might form part of their private life. Sadly so novel is Twitter, it had its inception in 2006, that it wasn’t available to Eric Cantona to convey his dada-esque thoughts to an eager world. More recent examples of twitter utterances by professional footballers have articulated rather less philosophical views but various incidents have still been covered in the tabloid press. It is not then a surprise that the new Football Association’s Code of Conduct for England Players (the “Code”) specifically engages with the issue of the use of social media. 

Freedom of expression is not an absolute right; proportionate limitations within a democratic society are permissible. It is clear, in the context of employment relationships, that an employer’s reputation may justify a limitation upon the freedom of employees’ expression on the Web, even outside the workplace, see by example the decision of the ECHR in Pay v. United Kingdom 32792/05.

The FA’s approach in adopting such restrictions upon players mirrors an approach, which many employers are taking in the development of social media policies. Making oneself available for selection for the national team is ultimately a matter of personal choice.  Acceptance of the Code, therefore, comes as part of the obligations which are voluntarily taken on when a player wishes to be selected for England. Clubs, as an employer, are no less entitled to address their own reputational issues through codes of conduct. For example, the recent Ashley Cole tweet of an Anglo- Saxonism in relation to the criticisms of him of by the independent regulatory commission led to a fine being imposed upon him by Chelsea for breach of its own code of conduct.

Returning to the Code, it is divided into three sections. The first section sets out the standards of conduct expected of England players at all times, even when the players are not on international duty. The second section deals with duties whilst on international duty, and the third section deals with sanctions for breach.

Taking the example of the use of social media on the players’ general obligations and whether or not they are on international duty, are expressly dealt with in the first section which provides that:

Comment on Twitter/Facebook about opposition, management, individuals could result in disciplinary action by Board of Inquiry and CE [Club England] management board.

Whilst the players are on international duty the second section applies and specific reference to the use of Social Media is again the Code providing various prohibitions:

Not publish (on Twitter or Facebook) anything that may cause or embarrass a member of the FA, the England squad and management.

No criticism on Twitter/Facebook.

No Twitter or Facebook comments on the day before the game or the day of the game unless authorized.

All of these specific obligations have to be read against the background of a broader duty under the Code that reminds players of their ambassadorial role and the expectation that they will show, at all times, the highest standards of conduct and behaviour.

The sanctions for breach of the Code range from oral warnings to determining that the player shall not be eligible to play for England for an indefinite period. It may be that the Code provides a model for clubs considering the development of their own policies. Ultimately, in common with other employers, the communication of clear expectations of conduct both on and off the workplace (pitch) is necessary if disciplinary sanctions are to be imposed.
Related link:  Profile of David Reade QC
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