Donna Reynolds: Football and its contracts are perfect example of being out of touch with real world

Donna Reynolds is an Employment Partner with Blackadders
Donna Reynolds is an Employment Partner with Blackadders
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Football: a business like no other. Take the transfer window. The countdown is on to deadline day and a variety of sources are bringing us breaking news, gossip and rumours about possible comings and goings. In what other business would employers and employees speak so openly and publicly about hiring, firing and ‘personal terms’?

While pundits’ predictions don’t always come to pass, the action off the pitch is often more entertaining than on it. In your average workplace, if the boss isn’t happy with performance, they will take the employee aside, spell out the issues and explain the standard expected, and in what timescale. The boss doesn’t (or shouldn’t) kick a boot (or anything else) that then strikes the employee above the eye. In your average workplace, the injured employee would resign and bring a complaint of constructive dismissal.

Football always offers examples on how out of touch it is with the real world. There are rumours Gareth Bale could move during this window, but stories about the alleged tempestuous relationship with Real Madrid manager Zinedine Zidane have been around for some time. Zidane confirmed he wanted Bale to leave and accused him of refusing to play against Bayern Munich. Bale was reportedly happy to sit out the remainder of his contract, sometimes literally, on the bench. However, Zidane recently insisted Bale is part of his plans, despite Bale being spotted holding a banner saying ‘Wales, Golf, Madrid. In that order’ with Welsh team-mates during Euro 2020 qualification celebrations. Does Zidane feels the same way after Bale was photographed on the bench attempting the ‘Bottle Flip Challenge’ whilst his team played Valencia?

Bale’s future remains unknown but had the same series of events played out in any other workplace, what would have been the outcome? Employers sometimes decide they no longer can (or want to) employ a particular individual. Redundancy, conduct and capability are only three reasons why an employer may take steps to terminate employment, but he or she would score an own goal if they announced, without warning, explanation or proper process, they wanted that employee to leave. What about employees who refuse to perform? Football managers are entitled to pick their starting line-up and bench any player they want, but there are implied terms central to any employment relationship. They include the duty to render faithful service within the terms of the contract. So if Zidane wants Bale to play, Bale must not act in a way contrary to the interests of the employer. They also include the duty to obey lawful, reasonable instructions. The crux of the relationship is that the employee is engaged to do work under the direction of the employer, meaning an instruction given by the employer consistent with the employee’s contract (for example, playing football) must be obeyed. Failure to do so can result in disciplinary action, up to and including dismissal. As far as employers being subject to implied duties, they have an obligation to pay agreed wages but there is no general duty to provide work. An employee kept idle, or sitting on the bench with only a water bottle for amusement, has no grounds for complaint, provided they are paid.

There are exceptions, one being where the nature of the work dictates that the employee must be allowed to work to maintain or develop their skills or maintain their public profile. Provided a footballer were allowed to join training and perhaps play in reserve games it would be difficult to see how his skills were not being maintained even if he were not in the first team.

Finally, can an employer dictate what employees do in their spare time? Zidane has confirmed he will not stop any of his players from doing anything in their free time, but it’s rumoured Wales plan to stop Bale from playing golf during Euro 2020 because his focus must be on football. In short, the answer is no. Of course, a footballer may have agreed something different as part of his ‘personal terms’ but for your average employee, they can do as they wish provided it does not interfere with their ability to perform their duties or affect the business of the employer.

The moral of the story? Follow your team on and off the pitch, keep up with the latest news and gossip but don’t necessarily follow their lead in how it deals with, and what it puts up with, from players. Footballers are employees but the formation and termination of their contracts of employment are unique and their employers are businesses like no other.

Donna Reynolds is an Employment Partner with Blackadders