Covid-19 & Football: What if a player refuses to return?



Football


After the Premier League was shut down as a result of the COVID-19 pandemic, clubs have now voted to recommence training with effect from 19 May 20209. This marks the first phase of Project Restart, the Premier League’s plan to get the league back up and running again.


However, the return will be anything but a return to business as “usual”; training sessions will be in groups of players of no more than five individuals, training sessions will be no more than 75 minutes for each player, and players are still expected to social distance.



Troy Deeney, the captain of Watford Football Club (Watford), has already publicly stated that he will not be returning, citing concerns regarding the inherent risks posed to the health of his five month old baby who has breathing difficulties.  In addition, he has cited statistics which show that individuals from the BAME community are potentially more at risk in developing the infection and suffering from long term complications as a result.  Understandably Troy Deeney does not wish to put himself or his family at further potential risk.



It is understood that Watford is understanding of his views, and will not insist that players return to training if they are uncomfortable in doing so, but what steps should clubs now be considering if their players also refuse to return?



Football clubs are employers, and consequently they have statutory, common law and contractual obligations to their players as employees of the club.  These obligations are in addition to the unique characteristics of football that cannot be overlooked such as the specific football regulations and terms contained within the standard playing contracts.



Under normal employment law principles, if a player refuses to undertake their duties (in this case a player refusing to train), this potentially amounts to a breach of the fundamental terms of their employment contract.



The standard player contract imposes specific obligations on players to attend and participate in matches and training, as well as following lawful instructions of club officials.



With this in mind, if players refuse to return to training or to play in matches, clubs could, in theory at least, opt to discipline players, refuse to pay them/put them on unpaid leave and even dismiss them.



But, this carries with it significant legal and reputational risks for the following reasons:



– All players, as employees of the club, have protection from detrimental treatment (which would include not being paid, being disciplined, or being fined) or dismissal where the player has taken appropriate steps to protect themselves or others where they reasonably believed there was “serious and imminent” danger.



If players are disciplined or dismissed because they have raised COVID-19 concerns, it seems inevitable they will bring claims citing these provisions. The Tribunals (whether that be the football or employment tribunals) may have some sympathy with players on this front due to the severity of the virus, the death toll throughout the UK, and because, by the very nature of what they do, players and staff will inevitably be in close contact with each other and competitors (as and when competitive football resumes).



Defending these claims will be complicated and difficult for clubs. Clubs will certainly need to demonstrate the steps they have taken to keep players safe. But, even with these steps, players might still succeed if they can show they have a “reasonable belief” they are being placed in danger and they took “appropriate steps” as a result.



These claims are commercially significant as well as legally important.  The protection is a Day 1 right, and there is no length of service requirement to bring a detriment or unfair dismissal claim.  Any dismissal in breach of these provisions would be automatically unfair.  Compensation for successful claimants is uncapped, potentially leaving clubs exposed to significant liabilities including for unpaid wages, fines for failing to attend etc



And, of course, any dispute with players is likely to be played out in full public view, which carries its own reputational risks and concerns.



– If players raise concerns regarding the proposals for bringing them back to train/play, clubs will need to be very careful how they deal with their complaints and what action they take in response.  A complaint to the club will no doubt be a formal grievance, which will need to be dealt with properly.



Complaints to the club may also amount to a whistleblowing disclosure. This is also the case for complaints made to the Health and Safety Executive or even potentially the press.  If employee player blows the whistle they are also protected from detrimental treatment or dismissal (in a manner akin to the health and safety protections outlined above). Again, this is a Day 1 right with the potential for uncapped compensation.



– There are also potential complications for specific groups of players. As Troy Deeney has highlighted, evidence is emerging that the BAME population is particularly at risk from COVID-19 and more likely to die in the event of infection; as such, it seems feasible that this group of players might have particular concerns about returning to work and might seek greater protection from clubs. If they are disciplined or dismissed as a result of raising concerns, they may also be able to bring race discrimination claims. Again, discrimination protection is a Day 1 right, and any compensation is potentially uncapped.



What other legal issue might arise for clubs?

Changing the workplace or working arrangements for players (or other staff) to take into account any new health and safety requirements or Government guidance may require changes to the terms of the employment contract. Clubs will need to review their standard player contracts and employment contracts with staff to decide what changes, if any, need to be made.



Generally clubs will want to agree any changes with players/staff. It is therefore vitally important to discuss changes with players and to explain to them why they are necessary. Changes should be formally documented and clearly set out, in case of a later dispute. This might be a simple letter setting out what has changed and when from, or, if the changes are more significant, clubs might need to agree entirely new contracts.



If agreement with players/staff cannot be reached, clubs may need to decide how to go about forcing through changes – particularly if they are essential to maintaining a safe place of work. Legally, forcing through changes to terms and conditions can be difficult.  We would recommend taking specific advice on how best to proceed in this scenario.



However, given the sensitive nature of the current pandemic and the very real risks it poses to individual health (and that of their families and dependents) we would strongly recommend clubs taking a practical, open and empathetic approach. An overly legalistic or rigid approach is likely lead to more problems and could easily damage the club’s relationships with their players/staff, and their reputation with the public more generally.
Credit: fcbusiness.co.uk
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