Withholding of salaries could open up right to legal redress for players

But claims for constructive dismissal not in top earners’ best interests, writes Sarah Chilton

VLADIMIR Romanov and Heart of Midlothian FC may have taken their eyes off the legal ball if, as has been suggested in The Scotsman and elsewhere, the extended withholding of salaries beyond their due payment date is a means of surreptitiously provoking higher-paid players to find other clubs. But to what extent are professional footballers in general protected by employment law?

Footballers are employees, engaged on a contract of employment like any other hired individuals and are, therefore, given protection against unfair dismissal after 51 weeks of service (which will increase to two years from April 2012). This also includes cases of ‘constructive dismissal’ in which the actions of an employer are deemed to have given an employee no alternative but to resign.

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Failure to pay a footballer – like any other employee – is, in most situations, a breach of contract, not to mention an unlawful deduction from wages. As such, the player may be able to resign and claim constructive dismissal. It’s not really in many players’ interests, though, to resign in such a way and therefore players and clubs will try to avoid matters coming to that. It may be that the club undertakes to pay the wages late and the player accepts that undertaking (expressly or by continuing to play). While the player would possibly struggle to argue that the contract was breached until such time as the “new” payment date had passed without payment, if failure to pay does continue there could also be an additional claim related to unlawful deduction of wages when these were not paid.

It is worth nothing that for footballers at the higher end of the wages spectrum, a payout for constructive (or unfair) dismissal probably provides little real compensation, as the statutory cap on this is currently £68,400.

What also differentiates footballers from conventional employees is that they probably have individual contracts in various formats which determine pay. Footballers too are part of the bonus culture.

Players (and those advising them) will also have to bear in mind that there are a host of other rules and regulations which apply to their registration and relationship with a club and which need to be considered alongside employment law. So, while in terms of employment and contract law a player may be entitled to resign and claim constructive dismissal, if he was to do without also considering the specific rules that apply here it could present problems when he tries to sign for another club.

If a player does find himself with a right to claim against his club, however, compensation could include not only recompense for unfair dismissal but also for breach of contract, being potentially the equivalent of their earnings for the unexpired period of the fixed term contract.

• Sarah Chilton is an associate in employment law with the Edinburgh-based firm of solicitors, Murray Beith Murray